AMENDED AND RESTATED OFFICE FACILITY LEASE
Exhibit
10.2
This
AMENDED
AND RESTATED
OFFICE FACILITY LEASE (“Amended and Restated Lease”)
effective August 9, 2007 by and between FIRST INDUSTRIAL INVESTMENT,
INC. (“Landlord”) and CHD MERIDIAN HEALTHCARE,
LLC (“Tenant”).
WHEREAS,
Tenant and
First Industrial Development Services, Inc., previously executed that Office
Facility Lease with an effective date of August 9, 2007 (the
“Lease”) for the lease from said First Industrial Development
Services, Inc. to Tenant of an office building consisting of approximately
50,000 rentable square feet to be constructed by said First Industrial
Development Services, Inc., all pursuant to the terms and conditions set forth
therein;
WHEREAS,
said First
Industrial Development Services, Inc., through inadvertence and mistake
was named in the Lease as the “landlord,” rather than Landlord, the
name of said First Industrial Development Services, Inc. having previously
been
changed to “First Industrial Investment, Inc.” pursuant to Articles of Amendment
dated August 22, 2006 filed with the State of Maryland Department of Assessments
of Taxation which Articles are attached hereto as Exhibit H;
and
WHEREAS,
the parties
now desire to amend and restate the Lease to properly reflect the name of the
Landlord hereunder as First Industrial Investment, Inc., it being agreed and
acknowledged between the parties hereto that the Landlord in and under the
Lease
is First Industrial Investment, Inc., and that the Lease is and shall be amended
to reflect First Industrial Investment, Inc. as the Landlord hereunder and
restated in its entirety as follows:
(BUILD-TO-SUIT/TRIPLE
NET)
1. BASIC
TERMS. This Section 1 contains the
Basic Terms of this Lease between Landlord and Tenant, named
below. Other Sections of the Lease referred to in this
Section 1 explain and define the Basic Terms and are to be read
in conjunction with the Basic Terms.
1.1 Effective
Date of Lease: August 9, 2007
1.2 Landlord: First
Industrial Investment, Inc.
1.3 Tenant: CHD
Meridian Healthcare, LLC, a Delaware limited liability company
1.4 Premises: (See
Section 2.1) Approximately 50,000 rentable square
feet (as measured by the American National Standard Method of
Measuring Floor Area in Office Buildings, EONS Z65.1-1996, published by the
Building Owners and Managers Association International (“BOMA Standards”)
included in the Improvements (as defined on Exhibit B attached
hereto) to be constructed pursuant to the terms of this Lease on land legally
described on Exhibit A attached hereto (the
“Land”).
1.5 Lease
Term: Eleven (11) years (the “Term”), commencing on
the Commencement Date (as defined in Exhibit B attached hereto)
and ending eleven Lease Years (as hereinafter defined) thereafter unless sooner
terminated as provided in this Lease (the “Expiration Date”),
or unless extended pursuant to Section 25.18. The
term, “Lease Year,” refers to a period of twelve (12)
consecutive calendar months, the first of which twelve (12) month periods is
referred to as the “Initial Lease Year;” such Initial Lease
Year is the period from the Commencement Date to the last day of the calendar
month in which the first annual anniversary of the Commencement Date
occurs.
1.6 Permitted
Use: (See Section 4.1) Office space,
on-site health center and medical care facility, health fitness center, pharmacy
and drug distribution center.
1.7 Tenant’s
Guarantor: I-trax, Inc., a Delaware corporation
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1.8 Brokers: (See
Section 24; if none, so state): (A)
Tenant’s Broker: Newmark ▇▇▇▇▇▇ ▇▇▇▇▇; and (B) Landlord’s
Broker: None
1.9 Security/Damage
Deposit: The Letter of Credit
1.10 Buyout
Allowance: Subject to Tenant’s prior delivery to Landlord of the
Letter of Credit (defined below), $963,796.00 to be paid by Landlord directly
to
▇▇▇▇▇▇ Hills IV Investments, Inc., a Tennessee corporation, for the benefit
of
Tenant on or before September 1, 2007, to satisfy Tenant’s obligations pursuant
to that Amended and Restated Second Amendment to Lease dated August 9, 2007,
which is attached hereto as Exhibit E. Landlord
acknowledges that payment of the buyout allowance is a material inducement
to
Tenant to execute this Lease, and subject to delivery of the Letter of Credit
by
Tenant to Landlord, Landlord shall indemnify and hold harmless Tenant from
any
direct Losses (as defined below) from the failure by Landlord to make such
payment on or before September 1, 2007.
1.11 Exhibits
to Lease: The following exhibits are attached to and made a part of
this Lease: A (Legal Description of Land), A-1 (Floor Plan of
Premises); B (Construction Improvements, inclusive of B-1 (Landlord
Improvements), B-2 (Tenant Improvements), B-3 (Acceptance Agreement), B-4
(Allowances/Construction Budget), and B-5 (Construction Schedule)); C (Tenant
Operations Inquiry Form); D (Broom Clean Condition and Repair Requirements);
E
(Amended and Restated Second Amendment to Lease); F (Form of Estoppel
Certificate); G (Standby Letter of Credit); and H (Name Change
Articles).
2. LEASE
OF PREMISES; RENT.
2.1 Lease
of Premises for Term. Landlord hereby leases the
Premises to Tenant, and Tenant hereby rents the Premises from Landlord, for
the
Term and subject to the conditions of this Lease. As of the
Commencement Date, Tenant shall occupy all 50,000 rentable square feet of the
Premises.
2.2 Types
of Rental Payments. Tenant shall pay net base rent to Landlord in
monthly installments, in advance, on the first day of each and every calendar
month during the Term of this Lease (the “Base Rent”) in the
amounts and for the periods as set forth below:
Rental
Payments
|
Lease
Period
|
Annual
Base Rent
|
Monthly
Base Rent
|
|
Lease
Year
1 Months
1-4
Months
5-12
|
Free
Rent
$530,000.00
|
Free
Rent
$66,250.00
|
|
Lease
Year 2
|
$810,900.00
|
$67,575.00
|
|
Lease
Year 3
|
$827,118.00
|
$68,927.00
|
|
Lease
Year 4
|
$843,660.00
|
$70,305.00
|
|
Lease
Year 5
|
$860,554.00
|
$71,713.00
|
|
Lease
Year 6
|
$877,764.00
|
$73,147.00
|
|
Lease
Year 7
|
$895,320.00
|
$74,610.00
|
|
Lease
Year 8
|
$913,224.00
|
$76,102.00
|
|
Lease
Year 9
|
$931,488.00
|
$77,624.00
|
|
Lease
Year 10
|
$950,112.00
|
$79,176.00
|
|
Lease
Year 11
|
$969,120.00
|
$80,760.00
|
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Tenant
shall also pay all Operating
Expenses (defined below) and any other amounts owed by Tenant hereunder
(collectively, “Additional Rent”). In the event any
monthly installment of Base Rent or Additional Rent, or both, is not paid within
10 business days of the date when due, a late charge in an amount
equal to 1% of the then delinquent installment of Base Rent and/or Additional
Rent (the “Late Charge”; the Late Charge, Default Interest, as
defined in Section 23.3 below, Base Rent and Additional Rent
are collectively be referred to as “Rent”), shall be paid by
Tenant to Landlord, First Industrial Investment, Inc., ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, or if sent by overnight courier, The
Northern Trust Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ Receipt
and
Dispatch, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: First Industrial Investment, Inc., Suite
1066 (or such other entity designated as Landlord’s management agent, if any,
and if Landlord so appoints such a management agent, the
“Agent”), or pursuant to such other directions as Landlord
shall designate in this Lease or otherwise in writing.
2.3 Covenants
Concerning Rental Payments; Initial and Final Rent
Payments. Tenant shall pay the Rent promptly when due,
without notice or demand, and without any abatement, deduction or
setoff. No payment by Tenant, or receipt or acceptance by Agent or
Landlord, of a lesser amount than the correct Rent shall be deemed to be other
than a payment on account, nor shall any endorsement or statement on any check
or letter accompanying any payment be deemed an accord or satisfaction, and
Agent or Landlord may accept such payment without prejudice to its right to
recover the balance due or to pursue any other remedy available to
Landlord. If the Commencement Date occurs on a day other than the
first day of a calendar month, the Rent due for the first partial calendar
month
of the Term shall be prorated on a per diem basis (based on a 360 day, 12 month
year) and paid to Landlord on the Commencement Date.
2.4 Net
Lease. Tenant shall pay all costs and expenses incurred
by Landlord and relating to the ownership and operation of the Premises and
the
business carried on therein, unless otherwise expressly provided to the contrary
in this Lease. Any amount or obligation relating to the Premises that
is not expressly declared (under this Lease) to be that of Landlord shall be
deemed to be an obligation of Tenant, to be performed by Tenant, at Tenant’s
expense. It is the intention of the parties hereto that the
obligations of Tenant hereunder shall be separate and independent covenants
and
agreements, that the Base Rent and the Additional Rent shall continue to be
payable in all events, and that the obligations of Tenant hereunder shall
continue unaffected in all events, unless the requirement to pay or perform
the
same shall have been specifically terminated pursuant to an express provision
of
this Lease.
3. OPERATING
EXPENSES.
3.1 Definitional
Terms Relating to Additional Rent. For purposes of this
Section and other relevant provisions of the Lease:
3.1.1 Operating
Expenses. The term “Operating Expenses”
shall mean all of the following: (i) all market-based premiums for
commercial property, casualty, general liability, boiler, flood, earthquake,
terrorism and all other types of insurance provided by Landlord and relating
to
the Premises, and all deductibles paid by Landlord pursuant to
insurance policies required to be maintained by Landlord under this Lease;
(ii)
management fees to Landlord or Agent in an amount not to exceed 2.5% per annum
of all Base Rent due hereunder; (iii) Taxes, as hereinafter defined in
Section 3.1.2 (subject, however, to the last
sentence of Section 3.1.2); (iv) dues, fees or other costs and
expenses, of any nature, due and payable to any association or comparable entity
to which Landlord, as owner of the Premises, is a member or otherwise belongs
and that governs or controls any aspect of the ownership and operation of the
Premises; and (v) any real estate taxes and common area maintenance expenses
levied against, or attributable to, the Premises under any declaration of
covenants, conditions and restrictions, reciprocal easement agreement or
comparable arrangement that encumbers and benefits the Premises and other real
property (e.g. a business park).
3.1.2 Taxes. The
term “Taxes,” as referred to in Section
3.1.1(iii) above shall mean (i) all governmental taxes, assessments,
fees and charges of every kind or nature (other than Landlord’s income taxes),
whether general, special, ordinary or extraordinary, due at any time or from
time to time, during the Term and any extensions thereof, in connection with
the
ownership, leasing, or operation of the Premises, or of the personal property
and equipment located therein or used in connection therewith; and (ii) any
reasonable expenses incurred by Landlord in contesting such taxes or assessments
and/or the assessed value of the Premises. For purposes hereof,
Tenant shall be responsible for any Taxes that are due and payable at any time
or from time to time during the Term and for any Taxes that are assessed, become
a lien, or accrue during any Operating Year, which obligation shall survive
the
termination or expiration of this Lease. If Landlord so elects, by
delivery of written notice to Tenant at any time during the Term, Tenant shall
pay the Taxes directly to the taxing authority(ies), rather than to Landlord
for
payment to the taxing authority(ies), whereupon Tenant shall be required to
pay
all Taxes prior to the date on which they become delinquent and Tenant shall
deliver to Landlord, promptly after Tenant’s payment of same, reasonable
evidence of such payments.
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3.1.3 Operating
Year. The term “Operating Year” shall
mean the calendar year commencing January 1st of each year (including the
calendar year within which the Commencement Date occurs) during the
Term.
3.2 Payment
of Operating Expenses. Tenant shall pay, as Additional
Rent and in accordance with the requirements of Section 3.3,
all of the Operating Expenses, as set forth in Section
3.3. Additional Rent commences to accrue upon the
Commencement Date. The Operating Expenses payable hereunder for the
Operating Years in which the Term begins and ends shall be prorated to
correspond to that portion of said Operating Years occurring within the
Term. The Operating Expenses and any other sums due and payable under
this Lease shall be adjusted upon receipt of the actual bills therefor, and
the
obligations of this Section 3 shall survive the
termination or expiration of the Lease.
3.3 Payment
of Additional Rent. Landlord shall have the right to
reasonably estimate the Operating Expenses for each Operating
Year. Upon Landlord’s or Agent’s notice to Tenant of such estimated
amount, Tenant shall pay, on the first day of each month during that Operating
Year, an amount (the “Estimated Additional Rent”) equal to the
estimate of the Operating Expenses divided by 12 (or the fractional portion
of
the Operating Year remaining at the time Landlord delivers its notice of the
estimated amounts due from Tenant for that Operating Year). If the
aggregate amount of Estimated Additional Rent actually paid by Tenant during
any
Operating Year is less than Tenant’s actual ultimate liability for Operating
Expenses for that particular Operating Year, Tenant shall pay the deficiency
within 30 days of Landlord’s written demand therefor. If the
aggregate amount of Estimated Additional Rent actually paid by Tenant during
a
given Operating Year exceeds Tenant’s actual liability for such Operating Year,
the excess shall be credited against the Estimated Additional Rent next due
from
Tenant during the immediately subsequent Operating Year, except that in the
event that such excess is paid by Tenant during the final Lease Year, then
upon
the expiration of the Term, Landlord or Agent shall pay Tenant the
then-applicable excess promptly after determination thereof. Tenant
shall have the right upon thirty (30) days prior notice to audit the books
and
records of the Landlord with respect to its determination of Additional
Rent.
3.4 Management
Services. Landlord shall provide the following
management services in consideration of the management fee set forth in
Section 3.1.1: (a) assist Tenant as needed with
Tenant’s management and oversight of all common areas within the Building (as
defined on Exhibit B), including, elevator shafts, stairways,
vertical penetrations, electrical systems, and all other areas and building
systems not included within the Premises based on BOMA Standards; (b)
administration and management of Tenant’s repair, replacement, operation and
maintenance of the elevators and the heating, ventilation
and air-conditioning system; (c) assist Tenant as needed in connection with
Tenant’s administration of its service contracts with respect to (i) janitorial
services for the Premises on business days, (ii) maintenance, repair and
replacement of the driveways, access roads, parking and sidewalk areas
(including snow and ice removal, sweeping and striping), landscaped areas,
and
lighting, and (iii) trash and rubbish removal; (d) management and administration
of payment of annual taxes and assessments assessed by the County, City, and/or
other governmental authorities for the land and improvements constituting the
Premises; and (e) customary management and administration services with respect
to insurance coverage for the Premises.
4. USE
OF PREMISES; SIGNAGE; SECURITY DEPOSIT.
4.1 Use
of Premises. The Premises shall be used by the Tenant
for the purpose(s) set forth in Section 1.6 above and for no
other purpose whatsoever. Tenant shall not, at any time, use or
occupy, or suffer or permit anyone to use or occupy, the Premises, or do or
permit anything to be done in the Premises, in any manner that would reasonably
be expected to (a) violate any Certificate of Occupancy for the Premises; (b)
cause, or be liable to cause, injury to, or in any way impair the value or
proper utilization of, all or any portion of the Premises (including, but not
limited to, the structural elements of the Premises) or any equipment,
facilities or systems therein; (c) constitute a violation of the laws and
requirements of any public authority or the requirements of insurance bodies
or
the rules and regulations of the Premises, including any covenant, condition
or
restriction affecting the Premises; (d) exceed the load bearing capacity of
the
floor of the Premises; or (e) impair or tend to impair the character, reputation
or appearance of the Premises. On or prior to the date hereof, Tenant
has completed and delivered for the benefit of Landlord a “Tenant Operations
Inquiry Form” in the form attached hereto as Exhibit C
describing the nature of Tenant’s proposed business operations at the Premises,
which form is intended to, and shall be, relied upon by
Landlord. From time to time during the Term (but no more often than
once every twelve months unless Tenant is in default hereunder or unless Tenant
assigns this Lease or subleases all or any portion of the Premises, whether
or
not in accordance with Section 8), Tenant shall provide an
updated and current Tenant Operations Inquiry Form upon Landlord’s
request. At such time as Tenant seeks any zoning or land use approval
required for the Permitted Uses, Landlord shall provide commercially reasonable
assistance to obtain such approvals, provided, that, it is reimbursed for all
out-of-pocket costs incurred.
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4.2 Signage. Except
as set forth in the Preliminary Plans or on the Final Project Plans (including
signage on the building), Tenant shall not affix any sign of any size or
character to any portion of the Premises, without prior written approval of
Landlord, which approval shall not be unreasonably withheld or
delayed. Tenant shall remove all signs of Tenant upon the expiration
or earlier termination of this Lease and promptly repair any damage to the
Premises caused by, or resulting from, such removal.
4.3 Letter
of Credit.
4.3.1 Delivery
of Letter of Credit. Concurrently with
Tenant’s execution and delivery of this Lease to Landlord, and as an express
condition to Landlord’s obligation to pay the Buyout Allowance to Tenant, Tenant
shall deliver to Landlord a letter of credit (“Letter of
Credit”) in the amount of Seven Hundred Thousand and No/100 Dollars
($700,000.00). The Letter of Credit shall be held by Landlord as
security for the performance by Tenant of all its material obligations under
this Lease. Upon the occurrence of a Default hereunder by Tenant,
Landlord may, from time to time, draw on the Letter of Credit and utilize the
proceeds, therefor (the “Security Deposit”) to the extent
necessary to satisfy any and all amounts due and owing under Section 23 arising
out of such Default. Any remaining balance of the Security Deposit
shall be returned by Landlord to Tenant at the earlier of within 30 days after
(a) the termination or expiration of this Lease and the full and complete
satisfaction of Tenant’s obligations hereunder; (b) the day on which the amount
of the Letter of Credit that Tenant must maintain is reduced in accordance
with
Section 4.3.2(b) so long as Tenant delivers to Landlord substitute Letters
of
Credit in accordance with Section 4.3.2(b); or (c) in the event of a Default
which may be cured by the payment of money, upon payment in full of such amount
in full satisfaction and discharge of such Default as reasonably required by
Landlord if Landlord elects, in its sole and absolute discretion, to accept
such
payment in cure of such Default, provided that Landlord’s election to accept
such payment of money in satisfaction and cure of any Default shall not
constitute a waiver by Landlord of any of its rights or remedies under Section
23 of this Lease with respect to any further or subsequent Default,
and provided further, that Landlord shall not be deemed to have accepted any
such payment of money in cure of any Default and the payment of money shall
not
be deemed or constitute a cure of the Default unless and until Landlord has
agreed in writing with Tenant that acceptance of such payment constitutes a
discharge and cure of such Default. The Security Deposit shall not be
considered an advance payment of rental or a measure of Landlord's damages
in
case of Default by Tenant. Tenant shall not be entitled to receive
and shall not receive any interest on the Security Deposit, and Landlord may
commingle the same with other monies of Landlord. In the event of a
sale or transfer of Landlord’s interest in the Premises, Landlord shall have the
right to transfer the Security Deposit to the purchaser or lessor, as the case
may be, and upon any such transfer Landlord shall be relieved of all liability
to Tenant for the return of the Security Deposit, and Tenant shall look solely
to the new owner or lessor for the return of the Security Deposit.
4.3.2 Letter
of Credit Requirements.
a. The
Letter of Credit shall (i) be clean, unconditional, irrevocable, transferable,
payable to Landlord on sight at a financial institution located in the
Nashville, Tennessee metropolitan area, in partial or full draws; (ii) be
substantially in the form attached hereto and incorporated herein as
Exhibit G, and otherwise be in form and content acceptable to
Landlord; (iii) be issued by a financial institution acceptable to Landlord;
and
(iv) contain an “evergreen” provision that provides that it is automatically
renewed on an annual basis unless the issuer delivers thirty (30) days’ prior
written notice of cancellation to Landlord and Tenant. Any and all
fees or costs charged by the issuer in connection with the Letter of Credit
shall be paid by Tenant.
b. Tenant
shall maintain the Letter of Credit in full force and effect throughout the
entire Term hereof and thirty (30) days after the expiration or earlier
termination hereof, and shall cause the Letter of Credit to be renewed or
replaced not less than thirty (30) days prior to its expiry
date. Landlord shall return the Letter of Credit to Tenant within
thirty (30) days after the expiration of the Term or upon an earlier termination
of this Lease, provided Tenant shall have made all payments and performed all
covenants and agreements required under this Lease. The foregoing
notwithstanding, if Tenant is not in Default under this Lease, Tenant may reduce
the face amount of the Letter of Credit to $466,667 after the sixteenth month
of
the Term. Thereafter, so long as Tenant shall not be in Default under
this Lease, the face amount of the Letter of Credit may be further reduced
to
$233,333 after the fortieth month of the Term. From and after such
second reduction, there shall be no further reductions in the face amount of
the
Letter of Credit.
c. Landlord
shall have the right to present the Letter of Credit for payment and draw
thereon in whole or in part following a Default and may apply the proceeds
thereof in satisfaction of Tenant’s obligations following a Default under
Section 23 of this Lease, but not further or otherwise. Any portion
of the Security Deposit remaining following Landlord’s acceptance in writing of
a payment of money in cure of a Default shall be returned to Tenant promptly
following any necessary restoration of the face amount of the Letter of Credit
to the amount of the Letter of Credit prior to Landlord’s draw(s), it being
understood that Tenant upon written demand shall forthwith restore the Letter
of
Credit to the amount of the Letter of Credit prior to Landlord’s
draw(s). In the event of a monetary Default which may be paid and
satisfied by payment of a fixed sum, without regard of whether Landlord elects
to accept such payment in cure of such Default, Landlord agrees to initially
only draw such amount(s) as may be initially required to recoup payment of
the
sum in question, provided that such partial draw shall not constitute
a waiver or be in limitation of Landlord’s ongoing rights to thereafter continue
to draw on the Letter of Credit in the enforcement of its rights and remedies
under Section 23 below at such times and in such amounts as Landlord determines
to be necessary for so long as such Default remains uncured, it being agreed
that any election of Landlord to accept payment in cure of a Default shall
at
all times be in Landlords sole and absolute discretion. Neither any
drawing under the Letter of Credit nor any installment of rent prepaid by Tenant
shall be deemed liquidated damages in the event of a default by Tenant under
this Lease. Landlord shall also have the right to draw upon the
Letter of Credit in any of the following circumstances: (i) if the credit rating
of the issuer of the Letter of Credit is downgraded from the credit rating
of
such issuer at the time of the issuance of the Letter of Credit, the issuer
of
the Letter of Credit enters into any supervisory agreement with any governmental
authority, or the issuer of the Letter of Credit fails to meet any capital
requirements imposed by applicable law and Landlord reasonably determines that
such event materially compromises the issuer’s ability to stand behind its
obligations under the Letter of Credit, and Tenant fails to deliver to Landlord
a replacement Letter of Credit complying with the terms of this Lease within
thirty (30) days of request therefor from Landlord, and (ii) if Tenant fails
to
provide Landlord with any renewal or replacement Letter of Credit complying
with
the terms of this Lease at least thirty (30) days prior to expiration of the
then-current Letter of Credit, where the issuer of such Letter of Credit has
advised Landlord of its intention not to renew the Letter of
Credit. In the event the Letter of Credit is drawn upon due solely to
the circumstances described in the foregoing clauses (i) or (ii), the amount
drawn shall be held by Landlord without interest as a Security Deposit to be
otherwise retained, expended or disbursed by Landlord in accordance with the
terms of this Lease.
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d. Upon
notice to Tenant, Landlord shall have the right to pledge or assign its interest
in the Letter of Credit and proceeds thereof to any lender holding a security
interest in the Premises. In the event of a sale or transfer of
Landlord’s interest in the Premises, upon notice to Tenant, Landlord shall have
the right to transfer the Letter of Credit, or the proceeds thereof, to the
extent not applied as set forth above, to transferee as the new landlord under
this Lease. To the extent the Letter of Credit, or proceeds thereof,
are so transferred, Landlord shall be considered released by Tenant from all
liability for the return of the Letter of Credit, or proceeds
thereof. No mortgagee or purchaser of any or all of the Premises at
any foreclosure proceeding brought under the provisions of any mortgage shall
(regardless of whether the Lease is at the time in question subordinated to
the
lien of any mortgage) be liable to Tenant or any other person for any or all
of
such sums or the return of any Letter of Credit (or any other or additional
security deposit or other payment made by Tenant under the provisions of this
Lease), unless Landlord has actually delivered the Letter of Credit, or proceeds
thereof, to such mortgagee or purchaser. If requested by any such
mortgagee or purchaser, Tenant shall obtain an amendment to the Letter of Credit
that names such mortgagee or purchaser as the beneficiary thereof in lieu of
Landlord.
e. No
right or remedy available to Landlord as provided in this Section 4.3 shall
preclude or extinguish any other right to which Landlord may be
entitled. In furtherance of the foregoing, it is understood that in
the event Tenant fails to perform its obligations and to take possession of
the
Premises on the Commencement Date, any amounts recovered from the Letter of
Credit shall not be deemed liquidated damages. Landlord may apply
such sums to reduce Landlord’s damages and such application of funds shall not
in any way limit or impair Landlord’s right to seek or enforce any and all other
remedies available to Landlord to the extent allowed hereunder, at law or in
equity.
5. CONDITION
AND DELIVERY OF PREMISES.
5.1 Condition
of Premises. Landlord shall deliver the Premises in
accordance with the requirements in Exhibit B
hereto. Except as otherwise expressly provided in
Exhibit B, Landlord shall not be obligated to make
any repairs,
replacements or improvements (whether structural or otherwise) of any kind
or
nature to the Premises in connection with, or in consideration of, this
Lease.
5.2 Commencement
Date. The Commencement Date shall be determined pursuant
to Exhibit B.
6. SUBORDINATION;
ESTOPPEL CERTIFICATES; ATTORNMENT.
6.1 Subordination
and Attornment. This Lease is and shall be subject and
subordinate at all times to: (a) all ground leases or underlying leases that
may
now exist affecting the Premises; (b) any mortgage or deed of trust that may
now
exist, and encumber, any or all of the Premises; and (c) all or any portion
of
Landlord’s interest or estate in any of said items. Tenant shall
execute and deliver, within ten (10) days of Landlord’s request, and in the form
reasonably requested by Landlord (or its lender), any documents evidencing
the
subordination of this Lease to any existing or future mortgage, deed of trust
or
ground lease, provided, that, such documents include a nondisturbance agreement
from the holder of such mortgage, deed of trust or other documents in a form
reasonably acceptable to Tenant. Tenant hereby covenants and agrees
that Tenant shall attorn to any successor to Landlord.
6
6.2 Estoppel
Certificate. Tenant agrees, from time to time and within
10 days after request by Landlord, to deliver to Landlord, or Landlord’s
designee, an estoppel certificate in the form of Exhibit
F. Failure by Tenant to timely execute and deliver such
certificate shall constitute a Default, as defined below (without any obligation
to provide any notice thereof or any opportunity to cure such failure to timely
perform).
6.3 Transfer
by Landlord. In the event of a sale or conveyance by Landlord of
the Premises, if the Successor Landlord fully assumes the Landlord’s obligations
herein, the same shall operate to release Landlord from any liability for any
of
the covenants or conditions, express or implied, herein contained in favor
of
Tenant and first arising or accruing after the effective date of Landlord’s
transfer of its interest in the Premises, and in such event Tenant agrees to
look solely to Landlord’s successor in interest (“Successor
Landlord”) with respect thereto and agrees to attorn to such successor;
provided however that it shall be a condition to Landlord’s release of its
obligations under Exhibit B that any such Successor Landlord
have sufficient financial wherewithal and strength to perform the obligations
of
Landlord under Exhibit B hereunder.
7. QUIET
ENJOYMENT. Subject to the provisions of this Lease, so
long as Tenant pays all of the Rent and performs all of its other obligations
hereunder, Tenant shall not be disturbed in its possession of the Premises
by
Landlord, Agent or any other person lawfully claiming through or under
Landlord.
8. ASSIGNMENT
AND SUBLETTING. Tenant shall not (a) assign (whether
directly or indirectly), in whole or in part, this Lease, or (b) mortgage or
pledge the Lease, or (c) sublet the Premises, in whole or in part, without
(in
the case of any or all of (a) through (c) above) the prior written consent
of
Landlord, which consent shall not be unreasonably withheld or
delayed. Tenant may, however, assign this Lease or sublease a portion
of the Premises to a wholly-owned subsidiary, or as part of the sale of
substantially all the assets or equity interests of Tenant or as part of a
merger, without the prior consent of Landlord, so long as (a) such assignment
is
not for the purpose of circumventing the provisions of this Section 8, and
(b) Landlord reasonably approves the net worth and credit worthiness of
such assignee. Furthermore, the change in less than twenty-five percent (25%)
of
the membership interests of the Tenant shall not constitute an assignment of
this Lease. In no event shall any assignment or sublease release Tenant or
any
guarantor from any obligation or liability hereunder. Any purported
assignment, mortgage, transfer, pledge or sublease made without the prior
written consent of Landlord shall be absolutely null and void. No
assignment of this Lease shall be effective and valid unless and until the
assignee executes and delivers to Landlord any and all documentation reasonably
required by Landlord in order to evidence assignee’s assumption of all
obligations of Tenant hereunder. Regardless of whether or not an
assignee or sublessee executes and delivers any documentation to Landlord
pursuant to the preceding sentence, any assignee or sublessee shall be deemed
to
have automatically attorned to Landlord in the event of any termination of
this
Lease. If this Lease is assigned, or if the Premises (or any part
thereof) are sublet or used or occupied by anyone other than Tenant, whether
or
not in violation of this Lease, Landlord or Agent may (without prejudice to,
or
waiver of its rights), collect Rent from the assignee, subtenant or
occupant. In the event of an assignment of this Lease and the payment
of consideration from the assignee to the Tenant in connection therewith, 50%
of
such net consideration (i.e., consideration remaining after payment of all
costs, fees (including broker and attorneys fees) and expenses incurred by
Tenant) shall be paid to Landlord. With respect to the allocable
portion of the Premises sublet, in the event that the total rent and any other
considerations received under any sublease by Tenant is greater than (on a
pro
rata and proportionate basis) the total Rent required to be paid, from time
to
time, under this Lease, Tenant shall pay to Landlord fifty percent (50%) of
such
excess as received from any subtenant and such amount shall be deemed a
component of the Additional Rent.
9. COMPLIANCE
WITH LAWS.
9.1 Compliance
with Laws. Tenant shall, at its sole expense (regardless
of the cost thereof), comply with all local, state and federal laws, rules,
regulations and requirements now or hereafter in force and all judicial and
administrative decisions in connection with the enforcement thereof
(collectively, “Laws”), whether such Laws (a) pertain to either
or both of the Premises and Tenant’s use and occupancy thereof; (b) concern or
address matters of an environmental nature; (c) require the making of any
structural, unforeseen or extraordinary changes; and (d) involve a change of
policy on the part of the body enacting the same, including, in all instances
described in (a) through (d), but not limited to, the Americans With
Disabilities Act of 1990 (42 U.S.C. Section 12101 et
seq.). If any license or permit is required for the conduct of
Tenant’s business in the Premises, Tenant, at its expense, shall procure such
license prior to the Commencement Date, and shall maintain such license or
permit in good standing throughout the Term. Tenant shall give prompt
notice to Landlord of any written notice it receives of the alleged violation
of
any Law or requirement of any governmental or administrative authority with
respect to either or both of the Premises and the use or occupation
thereof. The foregoing obligations of Tenant shall not vitiate or
otherwise affect Landlord’s obligations under Exhibit B
hereof.
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9.2 Hazardous
Materials. If, at any time or from time to time during
the Term (or any extension thereof), any Hazardous Material (defined below)
is
generated, transported, stored, used, treated or disposed of at, to, from,
on or
in the Premises by, or as a result of any act or omission of, any or all of
Tenant and any or all of Tenant Parties (defined below): (i) Tenant shall,
at
its own cost, at all times comply (and cause all others to comply) with all
Laws
relating to Hazardous Materials, and Tenant shall further, at its own cost,
obtain and maintain in full force and effect at all times all permits and other
approvals required in connection therewith; (ii) Tenant shall promptly provide
Landlord or Agent with complete copies of all communications, permits or
agreements with, from or issued by any governmental authority or agency
(federal, state or local) or any private entity relating in any way to the
presence, release, threat of release, or placement of Hazardous Materials on
or
in the Premises or any portion of the Premises, or the generation,
transportation, storage, use, treatment, or disposal at, on, in or from the
Premises, of any Hazardous Materials; (iii) Landlord, Agent and their respective
agents and employees shall have the right to either or both (x) enter the
Premises and (y) conduct appropriate tests, at Tenant’s expense, for the
purposes of ascertaining Tenant’s compliance with all applicable Laws or permits
relating in any way to the generation, transport, storage, use, treatment,
disposal or presence of Hazardous Materials on, at, in or from all or any
portion of the Premises; and (iv) upon written request by Landlord or Agent,
Tenant shall cause to be performed, and shall provide Landlord with the results
of reasonably appropriate tests of air, water or soil to demonstrate that Tenant
complies with all applicable Laws or permits relating in any way to the
generation, transport, storage, use, treatment, disposal or presence of
Hazardous Materials on, at, in or from all or any portion of the
Premises. This Section 9.2 does not authorize the
generation, transportation, storage, use, treatment or disposal of any Hazardous
Materials at, to, from, on or in the Premises in contravention of this
Section 9. Tenant covenants to investigate, clean up
and otherwise remediate, at Tenant’s sole expense, any release of Hazardous
Materials during the Term caused, contributed to, or created by any or all
of
(A) Tenant and (B) any or all of Tenant’s officers, directors, members,
managers, partners, invitees, agents, employees, contractors or representatives
(“Tenant Parties”). Such investigation and
remediation shall be performed only after Tenant has obtained Landlord’s prior
written consent; provided, however, that Tenant shall be entitled to respond
(in
a reasonably appropriate manner) immediately to an emergency without first
obtaining such consent. All remediation shall be performed in strict
compliance with Laws and to the reasonable satisfaction of
Landlord. Tenant shall not enter into any settlement agreement,
consent decree or other compromise with respect to any claims relating to any
Hazardous Materials in any way connected to the Premises without first obtaining
Landlord’s written consent (which consent may be given or withheld in Landlord’s
sole, but reasonable, discretion) and affording Landlord the reasonable
opportunity to participate in any such proceedings. As used herein,
the term, “Hazardous Materials,” means any waste, material or
substance (whether in the form of liquids, solids or gases, and whether or
not
airborne) that is or may be deemed to be or include a pesticide, petroleum,
asbestos, polychlorinated biphenyl, radioactive material, urea formaldehyde
or
any other pollutant or contaminant that is or may be deemed to be hazardous,
toxic, ignitable, reactive, corrosive, dangerous, harmful or injurious, or
that
presents a risk to public health or to the environment, and that is or becomes
regulated by any Law. The undertakings, covenants and obligations
imposed on Tenant under this Section 9.2 shall
survive the termination or expiration of this Lease.
10. INSURANCE.
10.1 Insurance
to be Maintained by Landlord. Landlord shall
maintain: (a) a commercial property insurance policy covering the
Premises (at its full replacement cost), but excluding Tenant’s personal
property; (b) commercial general public liability insurance covering Landlord
for claims arising out of liability for bodily injury, death, personal injury,
advertising injury and property damage occurring in and about the Premises
and
otherwise resulting from any acts and operations of Landlord, its agents and
employees; (c) rent loss insurance; and (d) any other insurance coverage deemed
appropriate by Landlord or required by Landlord’s lender. All of the
coverages described in (a) through (d) shall be determined from time to time
by
Landlord, in its sole discretion. All insurance maintained by
Landlord shall be in addition to and not in lieu of the insurance required
to be
maintained by the Tenant.
10.2 Insurance
to be Maintained by Tenant.
10.2.1 Tenant
shall purchase, at its own expense, and keep in force at all times from and
after the date of this Lease, the policies of insurance set forth below
(collectively, “Tenant’s Policies”). All Tenant’s
Policies shall (a) be issued by an insurance company with a Best’s rating of A
or better and otherwise reasonably acceptable to Landlord, and shall be licensed
to do business in the state in which the Premises is located; (b) provide
that said insurance shall not be canceled or materially modified unless 10
days’
prior written notice shall have been given to Landlord; (c) provide for
deductible amounts that are reasonably acceptable to Landlord (and its lender,
if applicable); and (d) otherwise be in such form, and include such
coverages, as Landlord may reasonably require. The Tenant’s Policies
described in (i) and (ii) below shall (1) provide coverage on an occurrence
basis; (2) name Landlord (and its lender, if applicable) as an additional
insured on all Tenant Policies except for auto and worker’s
compensation insurance, which shall not name Landlord as an additional insured;
(3) provide coverage, to the extent insurable, for the indemnity obligations
of
Tenant under this Lease; (4) intentionally omitted; (5) be primary, not
contributing with, and not in excess of, coverage that Landlord may carry;
and
(6) intentionally omitted.All Tenant’s Policies (or, at Landlord’s option,
Certificates of Insurance and applicable endorsements, including, without
limitation, an
“Additional
Insured-Managers or Landlords of Premises” endorsement) shall be
delivered to Landlord prior to the Commencement Date and renewals thereof shall
be delivered to Landlord’s notice addresses at least 30 days prior to the
applicable expiration date of each Tenant’s Policy. In the event that
Tenant fails, at any time or from time to time, to comply with the requirements
of the preceding sentence, Landlord may (i) order such insurance and charge
the
cost thereof to Tenant, which amount shall be payable by Tenant to Landlord
upon
demand, as Additional Rent or (ii) impose on Tenant, as Additional Rent, a
monthly delinquency fee, for each month during which Tenant fails to comply
with
the foregoing obligation, in an amount equal to five percent (5%) of the Base
Rent then in effect. Tenant shall give prompt notice to Landlord and
Agent of any bodily injury, death, personal injury, advertising injury or
property damage occurring in and about the Premises.
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10.2.2. Tenant
shall purchase and maintain, throughout the Term, a Tenant’s Policy(ies) of (i)
commercial general or excess liability insurance, including personal injury
and
property damage, in the amount of not less than $2,000,000.00 per occurrence,
and $5,000,000.00 annual general aggregate; (ii) comprehensive automobile
liability insurance covering Tenant against any personal injuries or deaths
of
persons and property damage based upon or arising out of the ownership, use,
occupancy or maintenance of a motor vehicle at the Premises and all areas
appurtenant thereto in the amount of not less than $1,000,000, combined single
limit; (iii) commercial property insurance covering Tenant’s personal property
(at its full replacement cost); and (iv) workers’ compensation insurance per the
applicable state statutes covering all employees of Tenant; and (v) if Tenant
handles, stores or utilizes Hazardous Materials in its business operations,
pollution legal liability insurance.
10.3 Waiver
of Subrogation. Notwithstanding
anything to the contrary in this Lease, Landlord and Tenant mutually waive
their
respective rights of recovery against each other and each other’s officers,
directors, constituent partners, members, agents and employees, and Tenant
further waives such rights against (a) each lessor under any ground or
underlying lease encumbering the Premises and (b) each lender under any mortgage
or deed of trust or other lien encumbering the Premises (or any portion thereof
or interest therein), to the extent any loss is insured against or required
to
be insured against under this Lease, including, but not limited to, losses,
deductibles or self-insured retentions covered by Landlord’s or Tenant’s
commercial property, general liability, rent loss insurance, automobile
liability or workers’ compensation policies described above. This
provision is intended to waive, fully and for the benefit of each party to
this
Lease, any and all rights and claims that might give rise to a right of
subrogation by any insurance carrier. Each party shall cause its
respective insurance policy(ies) to be endorsed to evidence compliance with
such
waiver.
11. ALTERATIONS.
11.1 General. Except
for the Tenant Improvements which shall be constructed pursuant to Landlord’s
approval as referenced in Paragraph 1.6 of Exhibit B and after
the Commencement Date, Tenant may, from time to time, at its expense, make
alterations or improvements in and to the Premises (hereinafter collectively
referred to as “Alterations”), provided that Tenant first
obtains the written consent of Landlord not to be unreasonably withheld or
delayed and only for alterations valued at $50,000 or higher, provided that
Landlord’s prior consent shall not be required for modifications or alterations
that are purely decorative. All of the following shall apply with
respect to all Alterations: (a) the Alterations are non-structural
and the structural integrity of the Premises shall not be affected; (b) the
Alterations are to the interior of the Premises; (c) the proper functioning
of
the mechanical, electrical, heating, ventilating, air-conditioning
(“HVAC”), sanitary and other service systems of the Premises
shall not be affected and the usage of such systems by Tenant shall not be
increased beyond published load limits; and (d) Tenant shall have appropriate
insurance coverage, reasonably satisfactory to Landlord, regarding the
performance and installation of the Alterations. Additionally, before
proceeding with any Alterations, Tenant shall (i) at Tenant’s expense, obtain
all necessary governmental permits and certificates for the commencement and
prosecution of Alterations; (ii) if Landlord’s consent is required for the
planned Alteration, submit to Landlord, for its written approval, working
drawings, plans and specifications and all permits for the work to be done
and
Tenant shall not proceed with such Alterations until it has received Landlord’s
approval (if required); and (iii) cause those contractors, materialmen and
suppliers engaged to perform the Alterations to deliver to Landlord certificates
of insurance (in a form reasonably acceptable to Landlord) evidencing policies
of commercial general liability insurance (providing the same coverages as
required in Section 10.2 above) and workers’ compensation
insurance. Such insurance policies shall satisfy the obligations
imposed under Section 10.2. Tenant shall cause the
Alterations to be performed in compliance with all applicable permits, Laws
and
requirements of public authorities, and with Landlord’s reasonable rules and
regulations or any other reasonable restrictions that Landlord may impose on
the
Alterations. Tenant shall cause the Alterations to be diligently
performed in a good and workmanlike manner, using new materials and equipment
at
least equal in quality and class to the standards for the Premises established
by Landlord. With respect to any and all Alterations for which
Landlord’s consent is required, Tenant shall provide Landlord with “as built”
plans, copies of all construction contracts, governmental permits and
certificates and proof of payment for all labor and materials, including,
without limitation, copies of paid invoices and final lien
waivers. If Landlord’s consent to any Alterations is required, and
Landlord provides that consent, then at the time Landlord so consents, Landlord
shall also advise Tenant whether or not Landlord shall require that Tenant
remove such Alterations at the expiration or termination of this
Lease. If Landlord requires Tenant to remove the Alterations, then,
during the remainder of the Term, Tenant shall be responsible for the
maintenance of appropriate commercial property insurance (pursuant to
Section 10.2) therefor; however, if Landlord shall not require
that Tenant remove the Alterations, such Alterations shall constitute Landlord’s
Property and Landlord shall be responsible for the insurance thereof, pursuant
to Section 10.1.
9
11.2 Generator. Tenant
shall have the right to install a generator in the Premises, provided that
the
installation and operation of said generator fully complies with all applicable
Laws, including but not limited to local codes or similar laws or regulations
pertaining to noise levels.
11.3 Satellite
Dish. Tenant shall have the right to install a satellite
dish upon the roof of the Building, subject to full compliance with the
following: Subject to applicable governmental approvals and Landlord’s
reasonable discretion with regard to the location, aesthetics, screening and
installation (means and methods) of the installation, Tenant shall have the
right to use the roof of the Building for the installation and operation of
a
satellite dish. Such roof rights and access shall be rent free, but
installation, screening and removal shall be at Tenant’s sole cost and expense.
Specifically, but not in limitation of the foregoing, Tenant shall install
and
operate any satellite dish in a manner so as to not injure or damage the roof
of
the building or vitiate any roof warranty associated therewith, and shall remove
the satellite dish upon the expiration or earlier termination of the Lease
and
repair any damage to the roof or any other portion of the Premises resulting
from such removal.
12. LANDLORD’S
AND TENANT’S PROPERTY. Except the generator, satellite
dish, air units for computer room, Liebert units, trade fixtures associated
specifically with the use of the Premises for purposes of a medical care
facility, health fitness center, pharmacy, drug distribution center and items
ancillary or related to the foregoing which shall remain the property of Tenant
and which may be removed from the Premises by Tenant, all fixtures, machinery,
equipment, improvements and appurtenances attached to, or built into, the
Premises at the commencement of, or during the Term, whether or not placed
there
by or at the expense of Tenant, shall become and remain a part of the Premises;
shall be deemed the property of Landlord (the “Landlord’s
Property”), without compensation or credit to Tenant; and shall not be
removed by Tenant at the Expiration Date unless Landlord requires their removal
(including, but not limited to, Alterations pursuant to
Section 11.1). Further, any personal property
in the Premises on the Commencement Date, movable or otherwise, unless installed
and paid for by Tenant as part of furniture and equipment purchased with TI
Allowance (as defined on Exhibit B), shall also constitute
Landlord’s Property and shall not be removed by Tenant. In no event
shall Tenant remove any of the following materials or equipment without
Landlord’s prior written consent (which consent may be given or withheld in
Landlord’s sole discretion): any power wiring or power panels,
lighting or lighting fixtures, wall or window coverings, carpets or other floor
coverings, heaters, air conditioners or any other HVAC equipment, fencing or
security gates, or other similar building operating equipment and
decorations. At or before the Expiration Date, or the date of any
earlier termination, Tenant, at its expense, shall remove from the Premises
all
of Tenant’s personal property and any Alterations that Landlord requires be
removed pursuant to Section 11.1, and Tenant shall repair (to
Landlord’s reasonable satisfaction) any damage to the Premises resulting from
either or both such installation and removal. Any other items of
Tenant’s personal property that remain in the Premises after the Expiration
Date, or following an earlier termination date, may, at the option of Landlord,
be deemed to have been abandoned, and in such case, such items may be retained
by Landlord as its property or be disposed of by Landlord, in Landlord’s sole
and absolute discretion and without accountability, at Tenant’s
expense. Notwithstanding the foregoing, if Tenant is in Default under
the terms of this Lease, Tenant may remove Tenant’s personal property from the
Premises only upon the express written direction of Landlord.
13. REPAIRS
AND MAINTENANCE.
13.1 Tenant
Responsibilities. Tenant acknowledges that, with full
awareness of its obligations under this Lease, Tenant has accepted the
condition, state of repair and appearance of the Premises, subject to
construction of the Improvements and associated warranty obligations, pursuant
to Exhibit B. Except for (a) Landlord’s obligations
under Exhibit B and (b) events of damage, destruction or
casualty to the Premises (as addressed in Section 18 below),
Tenant agrees that, at its sole expense, it shall put, keep and maintain the
Premises, including any Alterations and any altered, rebuilt, additional or
substituted buildings, structures and other improvements thereto or thereon,
in
substantially the same condition that exists on the Commencement Date
(reasonable wear and tear excepted), and in a safe condition, repair and
appearance (collectively, the “Required Condition”) and shall
make all repairs and replacements reasonably necessary
therefore. Without limiting the foregoing, but subject to the
provisions of Exhibit B regarding the Improvements
warranty, Tenant shall promptly make all structural and nonstructural, foreseen
and unforeseen, ordinary and extraordinary changes, replacements and repairs
of
every kind and nature, and correct any patent or latent defects in the Premises,
which may be required to put, keep and maintain the Premises in the Required
Condition. Tenant will keep the Premises orderly and free and clear
of rubbish. Tenant covenants to perform or observe all terms,
covenants and conditions of any easement, restriction, covenant, declaration
or
maintenance agreement (collectively, “Easements”) to which the
Premises are currently subject or become subject pursuant to this Lease
(provided that Landlord shall not grant any future Easements which materially
and adversely affect Tenant’s use of the Premises), whether or not such
performance is required of Landlord under such Easements, including, without
limitation, payment of all amounts due from Landlord or Tenant (whether as
assessments, service fees or other charges) under such
Easements. Tenant shall deliver to Landlord promptly, but in no event
later than five (5) business days after receipt thereof, copies of all written
notices received from any party thereto regarding the non-compliance of the
Premises or Landlord’s or Tenant’s performance of obligations under any
Easements. Tenant shall, at its expense, use reasonable efforts to
enforce compliance with any Easements benefiting the Premises by any other
person or entity or property subject to such Easement. Except with
respect to Landlord’s obligations under Exhibit
B, Landlord shall not be required to maintain,
repair or rebuild, or to make any alterations, replacements or renewals of
any
nature to the Premises, or any part thereof, whether ordinary or extraordinary,
structural or nonstructural, foreseen or not foreseen, or to maintain the
Premises or any part thereof in any way or to correct any patent or latent
defect therein. Tenant hereby expressly waives any right to make
repairs at the expense of Landlord which may be provided for in any Law in
effect at the Commencement Date or that may thereafter be enacted. If
Tenant shall vacate or abandon the Premises, it shall give Landlord immediate
written notice thereof.
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13.2 HVAC
Maintenance Contract. Tenant shall also maintain, in
full force and effect, a preventative maintenance and service contract with
a
reputable service provider for maintenance of the HVAC systems of the Premises
(the “HVAC Maintenance Contract”). The terms and
provisions of any such HVAC Maintenance Contract shall require that the service
provider maintain the Premises’ HVAC system in accordance with the
manufacturer’s recommendations and otherwise in accordance with normal,
customary and reasonable practices in the geographic area in which the Premises
is located and for HVAC systems comparable to the Premises’ HVAC
system. Within 30 days following the Commencement Date, Tenant shall
procure and deliver to Landlord the HVAC Maintenance
Contract. Thereafter, Tenant shall provide to Landlord a copy of
renewals or replacements of such HVAC Maintenance Contract no later than 30
days
prior to the then-applicable expiry date of the existing HVAC Maintenance
Contract. If Tenant fails to timely deliver to Landlord the HVAC
Maintenance Contract (or any applicable renewal or replacement thereof), then
Landlord shall have the right to contract directly for the periodic maintenance
of the HVAC systems in the Premises and to charge the cost thereof back to
Tenant as Additional Rent.
14. UTILITIES. Tenant
shall purchase all utility services and shall provide for waste removal,
cleaning and extermination services. Tenant shall pay the utility
charges for the Premises directly to the utility or municipality providing
such
services before they become delinquent. Tenant shall be
solely responsible for the repair and maintenance of any meters necessary in
connection with such services. Tenant’s use of electrical energy in
the Premises shall not, at any time, exceed the capacity of either or both
of
(x) any of the electrical conductors and equipment in or otherwise servicing
the
Premises; and (y) the HVAC systems of the Premises.
15. INVOLUNTARY
CESSATION OF SERVICES. Landlord reserves the right,
without any liability to Tenant and without affecting Tenant’s covenants and
obligations hereunder, to stop service of any or all of the HVAC, electric,
sanitary, elevator (if any), and other systems serving the Premises, or to
stop
any other services required by Landlord under this Lease, whenever and for
so
long as may be necessary by reason of (i) accidents, emergencies, strikes,
or
(ii) any other cause beyond Landlord’s reasonable control. Further,
it is also understood and agreed that Landlord or Agent shall have no liability
or responsibility for a cessation of services to the Premises that occurs as
a
result of causes beyond Landlord’s or Agent’s reasonable control. No
such interruption of service shall be deemed an eviction or disturbance of
Tenant’s use and possession of the Premises or any part thereof, or render
Landlord or Agent liable to Tenant for damages, or relieve Tenant from
performance of Tenant’s obligations under this Lease, including, but not limited
to, the obligation to pay Rent; provided, however, that if any interruption
of
services persists for a period in excess of five (5) consecutive business days
Tenant shall, as Tenant’s sole remedy, be entitled to a proportionate abatement
of Rent to the extent, if any, of any actual loss of use of the Premises by
Tenant.
16. LANDLORD’S
RIGHTS. Landlord, Agent and their respective agents,
employees and representatives shall have the right to enter and/or pass through
the Premises at any time or times upon reasonable prior notice (except in the
event of emergency) to examine and inspect the Premises and to show them to
actual and prospective lenders, prospective purchasers or mortgagees of the
Premises or providers of capital to Landlord and its affiliates; and in
connection with the foregoing, to install a sign at or on the Premises to
advertise the Premises for lease or sale; during the period of six months prior
to the Expiration Date (or at any time, if Tenant has vacated or abandoned
the
Premises or is otherwise in default under this Lease), Landlord and its agents
may exhibit the Premises to prospective tenants. Additionally,
Landlord and Agent shall have the following rights with respect to the Premises,
exercisable without notice to Tenant, without liability to Tenant, and without
being deemed an eviction or disturbance of Tenant’s use or possession of the
Premises or giving rise to any claim for setoff or abatement of
Rent: (i) to have pass keys, access cards, or both, to the Premises;
and (ii) to decorate, remodel, repair, alter or otherwise prepare the Premises
for reoccupancy at any time after Tenant vacates or abandons the Premises for
more than 30 consecutive days or without notice to Landlord of Tenant’s
intention to reoccupy the Premises.
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17. TENANTS
RIGHTS. If Landlord is in default under this Lease,
Tenant shall give Landlord written notice of such default and if Landlord fails
to cure the default within 30 days from such notice (or other reasonable time
agreed to by the parties) Tenant may assert a claim for damages actually
incurred. Tenant shall also be entitled to perform such repairs and
maintenance as is reasonably necessary and appropriate in order to cause
compliance with Landlord’s obligations provided Tenant has first given Landlord
thirty (30) days’ written notice or in the event of emergency repairs or
maintenance, such written notice as is reasonable or available under the
circumstances, but not less than twenty-four (24) hours. Landlord
agrees to reimburse Tenant for commercially reasonable costs and expenses
actually incurred by Tenant in effecting such repairs or maintenance within
thirty (30) days of the time that Tenant submits a written claim together with
back-up documentation for reimbursement to Landlord. Notwithstanding
anything to the contrary herein, under no circumstances shall Tenant have the
right to terminate this Lease in connection with the exercise of rights under
this Section 17.
18. NON-LIABILITY
AND INDEMNIFICATION.
18.1 Non-Liability. Except
as specifically set forth in this Lease, none of Landlord, Agent, any other
managing agent, or their respective affiliates, owners, partners, directors,
officers, agents and employees shall be liable to Tenant for any loss, injury,
or damage, to Tenant or to any other person, or to its or their property,
irrespective of the cause of such injury, damage or loss. Further,
except as specifically set forth in this Lease, none of Landlord, Agent, any
other managing agent, or their respective affiliates, owners, partners,
directors, officers, agents and employees shall be liable to Tenant: (a) for
any
damage caused by other persons in, upon or about the Premises, or caused by
operations in construction of any public or quasi-public work; (b) for
consequential or indirect damages, including those purportedly arising out
of
any loss of use of the Premises or any equipment or facilities therein by Tenant
or any person claiming through or under Tenant; (c) for any defect in the
Premises; (d) for injury or damage to person or property caused by fire, or
theft, or resulting from the operation of heating or air conditioning or
lighting apparatus, or from falling plaster, or from steam, gas, electricity,
water, rain, snow, ice, or dampness, that may leak or flow from any part of
the
Premises, or from the pipes, appliances or plumbing work of the
same.
18.2 Tenant
Indemnification. Except in the event of, and to the
extent of, Landlord’s negligence, sole negligence or willful misconduct and
further subject to the provisions of Section 10.3 above, Tenant
hereby indemnifies and holds Landlord, Agent, Landlord’s members and their
respective affiliates, owners, partners, members, directors, officers, agents
and employees (collectively, “Landlord Indemnified Parties”)
harmless from and against any and all Losses (defined below) actually suffered
and incurred by Landlord (after considering the availability of insurance)
and
arising from or in connection with any or all of: (a) the conduct or
management of the Premises or any business therein, or any work or Alterations
done, or any condition created by any or all of Tenant and Tenant Parties in
or
about the Premises during the Term or during the period of time, if any, prior
to the Commencement Date that Tenant has possession of, or is given access
to
the Premises; (b) any act, omission or negligence of any or all of Tenant and
Tenant Parties; (c) any accident, injury or damage whatsoever occurring in,
at
or upon the Premises and caused by any or all of Tenant and Tenant Parties;
(d)
any breach by Tenant of any or all of its warranties, representations and
covenants under this Lease; (e) any actions necessary to protect Landlord’s
interest under this Lease in a bankruptcy proceeding or other proceeding under
the Bankruptcy Code; (f) the creation or existence of any Hazardous Materials
in, at, on or under the Premises, if and to the extent brought to the Premises
or caused by Tenant or any party within Tenant’s control; and (g) any violation
or alleged violation by any or all of Tenant and Tenant Parties of any Law
(collectively, “Tenant’s Indemnified Matters”). In
case any action or proceeding is brought against any or all of Landlord and
the
Landlord Indemnified Parties by reason of any of Tenant’s Indemnified Matters,
Tenant, upon notice from any or all of Landlord, Agent or any Superior Party
(defined below), shall resist and defend such action or proceeding by counsel
selected by Tenant, which will be reasonably satisfactory to
Landlord. The term “Losses” shall mean all claims,
demands, expenses, actions, judgments, damages (actual, but not consequential,
indirect, or punitive), penalties, fines, liabilities, losses of every kind
and
nature, suits, administrative proceedings, costs and fees, including, without
limitation, attorneys’ and consultants’ reasonable fees and expenses, and the
costs of cleanup, remediation, removal and restoration, that are in any way
related to any matter covered by the foregoing indemnity. The
provisions of this Section 18.2 shall survive the expiration or
termination of this Lease.
18.3 Landlord
Indemnification. Subject to the provisions of
Section 10.3 above, Landlord hereby indemnifies and holds
Tenant harmless from and against any and all Losses actually suffered or
incurred by Tenant and arising from or in connection with any or all of: (a)
any
negligent, willful or intentional acts or omissions of any Landlord Indemnified
Parties; (b) any accident, injury or damage whatsoever occurring in, at or
upon
the Premises and caused by any or all of Landlord Indemnified Parties;
and (c) any violation or alleged violation by any or all of
Landlord Indemnified Parties of any Law or of this
Lease. Notwithstanding anything to the contrary set forth in this
Lease, prior to the payment of the Buy-Out Allowance by Landlord, the personal
liability of Landlord shall be limited to the amount of the Buy-Out Allowance
unpaid by Landlord arising out of Landlord’s wrongful failure to pay the Buy-Out
Allowance on or before September 1, 2007. From and after the payment
by Landlord of the Buy-Out Allowance to Tenant, the liability of Landlord to
Tenant under this Section 18.3 or any other provision of this
Lease, shall be limited to the interest of Landlord in the Premises, and Tenant
agrees to look solely to Landlord’s interest in the Premises for the recovery of
any judgment or award against Landlord, it being intended that Landlord shall
not be personally liable for any judgment or deficiency. The
provisions of this Section 18.3 shall survive the expiration or
termination of this Lease.
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18.4 Force
Majeure. From and after the Commencement Date, neither
the obligations of Tenant (except the obligation to pay Rent and the obligation
to maintain insurance, and provide evidence thereof, in accordance with
Section 10.2) nor those of Landlord shall be affected, impaired
or excused, and neither Landlord nor Tenant shall have any liability whatsoever
to the other, with respect to any act, event or circumstance arising out of
either or both (a) Landlord’s or Tenant’s, as the case may be, failure to
fulfill, or delay in fulfilling any of its obligations under this Lease (except,
with respect to Tenant, the obligation to pay Rent and the obligation to
maintain insurance, and provide evidence thereof, in accordance with
Section 10.2 or in connection with a rent abatement expressly
permitted by Section 15) by reason of labor dispute,
governmental preemption of property in connection with a public emergency or
shortages of fuel, supplies, or labor, or any other cause, whether similar
or
dissimilar, beyond Landlord’s or Tenant’s, as the case may be, reasonable
control; or (b) any failure or defect in the supply, quantity or character
of
utilities furnished to the Premises, or by reason of any requirement, act or
omission of any public utility or others serving the Premises, beyond Landlord’s
or Tenant’s, as the case may be, reasonable control.
19. DAMAGE
OR DESTRUCTION.
19.1 Notification
and Repair; Rent Abatement. Tenant shall give prompt
notice to Landlord and Agent of (a) any fire or other casualty to the
Premises, and (b) any damage to, or defect in, any part or appurtenance of
the
Premises’ sanitary, electrical, HVAC, elevator or other systems of which it has
knowledge. In the event that, as a result of Tenant’s failure to
satisfy its obligations pursuant to the preceding sentence, Landlord’s insurance
coverage is compromised or adversely affected in any material respect, then
Tenant is and shall be responsible for the payment to Landlord of any insurance
proceeds that Landlord’s insurer fails or refuses to pay to Landlord as a result
of the delayed notification. Subject to the provisions of
Section 19.2 below, if the Premises is damaged by fire or other
insured casualty, Landlord shall repair (or cause Agent to
repair) the damage and restore and rebuild the Premises (except Tenant’s
personal property) with reasonable dispatch after the adjustment of the
insurance proceeds attributable to such damage. Landlord (or Agent,
as the case may be) shall use its diligent, good faith efforts to make such
repair or restoration promptly and in such manner as not to unreasonably
interfere with Tenant’s use and occupancy of the Premises, but Landlord or Agent
shall not be required to do such repair or restoration work except during normal
business hours of business days. If the Premises are partially
damaged by fire or other casualty, the Rent shall be proportionally abated
to
the extent of any actual loss of use of the Premises by Tenant, except that
rent
shall not ▇▇▇▇▇ should both of the following have occurred: (i) the
damage to the Premises was caused by the intentional misconduct or negligent
acts or omissions by any or all of Tenant and Tenant Parties, and (ii) Landlord
shall not receive coverage pursuant to its rent loss insurance carried pursuant
to Section 10.1.
19.2 Total
Destruction. If the Premises shall be totally destroyed
by fire or other casualty, or if the Premises shall be so damaged by fire or
other casualty that (in the reasonable opinion of a reputable contractor or
architect designated by Landlord): (i) its repair or restoration
requires more than 180 days or (ii) such repair or restoration requires the
expenditure of more than 50% of the full insurable value of the Premises
immediately prior to the casualty, Landlord and Tenant shall each have the
option to terminate this Lease (by so advising the other, in writing) within
10
days after said contractor or architect delivers written notice of its opinion
to Landlord and Tenant, but in all events prior to the commencement of any
restoration of the Premises by Landlord. Additionally, if the damage
(x) is less than the amount stated in (ii) above, but more than 10% of the
full
insurable value of the Premises; and (y) occurs during the last two years of
Lease Term, then either party, shall have the option to terminate this Lease
pursuant to the notice and within the time period established pursuant to the
immediately preceding sentence; provided, however, that Landlord shall not
have
the right to terminate if Tenant shall have previously timely and properly
exercised its renewal option under Section 25.18. In
the event of a termination pursuant to either of the preceding two (2)
sentences, the termination shall be effective as of the date upon which either
Landlord or Tenant, as the case may be, receives timely written notice from
the
other terminating this Lease pursuant to the preceding sentence. If
neither Landlord nor Tenant timely delivers a termination notice, this Lease
shall remain in full force and effect. Notwithstanding the foregoing,
if (A) any holder of a mortgage or deed of trust encumbering the Premises or
landlord pursuant to a ground lease encumbering the Premises (collectively,
“Superior Parties”) or other party entitled to the insurance
proceeds fails to make such proceeds available to Landlord in an amount
sufficient for restoration of the Premises, or (B) the issuer of any commercial
property insurance policies on the Premises fails to make available to Landlord
sufficient proceeds for restoration of the Premises, then Landlord may, at
Landlord’s sole option, terminate this Lease by giving Tenant written notice to
such effect within 30 days after Landlord receives notice from the Superior
Party or insurance company, as the case may be, that such proceeds shall not
be
made available, in which event the termination of this Lease shall be effective
as of the date Tenant receives written notice from Landlord of Landlord’s
election to terminate this Lease. Landlord shall have no liability to
Tenant, and Tenant shall not be entitled to terminate this Lease by virtue
of
any delays in completion of repairs and restoration. For purposes of
this Section 19.2 only, “full insurable value”
shall mean replacement cost, less the cost
of footings, foundations and other
structures below grade.
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20. EMINENT
DOMAIN. If the whole, or any substantial (as reasonably
determined by Landlord) portion, of the Premises is taken or condemned for
any
public use under any Law or by right of eminent domain, or by private purchase
in lieu thereof, and such taking would prevent or materially interfere with
the
Permitted Use of the Premises, this Lease shall terminate effective when the
physical taking of said Premises occurs. If less than a substantial
portion of the Premises is so taken or condemned, or if the taking or
condemnation is temporary (regardless of the portion of the Premises affected),
this Lease shall not terminate, but the Rent payable hereunder shall be
proportionally abated to the extent of any actual loss of use of the Premises
by
Tenant. Landlord shall be entitled to any and all payment, income,
rent or award, or any interest therein whatsoever, which may be paid or made
in
connection with such a taking or conveyance, and Tenant shall have no claim
against Landlord for the value of any unexpired portion of this
Lease. Notwithstanding the foregoing, any compensation specifically
and independently awarded to Tenant for loss of business or goodwill, or for
its
personal property, shall be the property of Tenant.
21. SURRENDER
AND HOLDOVER. On the last day of the Term, or upon any
earlier termination of this Lease, or upon any re-entry by Landlord upon the
Premises: (a) Tenant shall quit and surrender the Premises to
Landlord “broom-clean” (as defined by Exhibit D, attached
hereto and incorporated herein by reference), and in a condition that would
reasonably be expected with normal and customary use in accordance with prudent
operating practices and in accordance with the covenants and requirements
imposed under this Lease, subject to ordinary wear and tear, and such damage
or
destruction as Landlord is required to repair or restore under this Lease;
(b)
Tenant shall remove all of Tenant’s personal property therefrom, except as
otherwise expressly provided in this Lease; and (c) Tenant shall surrender
to
Landlord any and all keys, access cards, computer codes or any other items
used
to access the Premises. Landlord shall be permitted to inspect the
Premises in order to verify compliance with this Section 21 at
any time prior to (x) the Expiration Date, (y) the effective date of any earlier
termination of this Lease, or (z) the surrender date otherwise agreed to in
writing by Landlord and Tenant. The obligations imposed under the
first sentence of this Section 21 shall survive the termination
or expiration of this Lease. If Tenant remains in possession after
the Expiration Date hereof or after any earlier termination date of this Lease
or of Tenant’s right to possession: (i) Tenant shall be
deemed a tenant-at-will; (ii) Tenant shall pay 125% per month of all
Rent last prevailing hereunder, and also shall pay all actual damages sustained
by Landlord, directly by reason of Tenant’s remaining in possession after the
expiration or termination of this Lease; (iii) there shall be no
renewal or extension of this Lease by operation of law; and (iv) the
tenancy-at-will may be terminated by either party hereto upon 30 days’ prior
written notice given by the terminating party to the non-terminating
party. The provisions of this Section 21 shall not
constitute a waiver by Landlord of any re-entry rights of Landlord provided
hereunder or by law.
22. EVENTS
OF DEFAULT.
22.1
Bankruptcy of Tenant. It shall be a default by Tenant
under this Lease (“Default” or “Event of
Default”) if Tenant makes an assignment for the benefit of creditors,
or files a voluntary petition under any state or federal bankruptcy (including
the United States Bankruptcy Code) or insolvency law, or an involuntary petition
is filed against Tenant under any state or federal bankruptcy (including the
United States Bankruptcy Code) or insolvency law that is not dismissed within
90
days after filing, or whenever a receiver of Tenant, or of, or for, the property
of Tenant shall be appointed, or Tenant admits it is insolvent or is not able
to
pay its debts as they mature.
22.1 Default
Provisions. In addition to any Default arising under
Section 22.1 above, each of the following shall constitute
a
Default: (a) if Tenant fails to pay Rent or any other payment when
due hereunder within 5 business days after written notice from Landlord of
such
failure to pay on the due date; provided, however, that if in any consecutive
12
month period, Tenant shall, on two (2) separate occasions, fail to pay any
installment of Rent on the date such installment of Rent is due, then, on the
third such occasion and on each occasion thereafter on which Tenant shall fail
to pay an installment of Rent on the date such installment of Rent is due,
Landlord shall be relieved from any obligation to provide notice to Tenant,
and
Tenant shall then no longer have a 5 business day period in which to cure any
such failure or if Tenant fails to pay when due any amounts required to be
paid
by Tenant pursuant to Exhibit B of this Lease; (b) if Tenant
fails, whether by action or inaction, to timely comply with, or satisfy, any
or
all of the material obligations imposed on Tenant under this Lease (other than
the obligation to pay Rent) for a period of 30 days after Landlord’s delivery to
Tenant of written notice of such default under this Section
22.2(b); provided, however, that if the default cannot, by its nature,
be cured within such 30 day period, but Tenant commences and diligently pursues
a cure of such default promptly within the initial 30 day cure period, then
Landlord shall not exercise its remedies under Section 23
unless such default remains uncured for more than 60 days after the initial
delivery of Landlord’s original default notice; and, at Landlord’s election, (c)
if Tenant vacates or abandons the Premises during the
Term.
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23. RIGHTS
AND REMEDIES.
23.1 Landlord’s
Cure Rights Upon Default of Tenant. If a Default occurs,
then Landlord may (but shall not be obligated to) cure or remedy the Default
for
the account of, and at the expense of, Tenant, but without waiving such
Default.
23.2 Landlord’s
Remedies. In the event of any Default by Tenant under
this Lease, Landlord, at its option, may, in addition to any and all other
rights and remedies provided in this Lease or otherwise at law or in equity
do
or perform any or all of the following:
23.2.1. Terminate
Tenant’s right to possession of the Premises by any lawful means, in which case
this Lease shall terminate and Tenant shall immediately surrender possession
to
Landlord. In such event, Landlord shall be entitled to recover from
Tenant all of: (i) the unpaid Rent that is accrued and unpaid as of
the date on which this Lease is terminated; (ii) the amount (if any), at the
time of such termination, by which (x) the unpaid Rent that would otherwise
be
due and payable under this Lease (had this Lease note been terminated for a
period of time from the date on which this Lease is terminated through the
Expiration Date) exceeds (y) the fair rental value of the Premises (for the
period of time from the date on which this Lease is terminated through the
Expiration Date), with such fair rental value not being reduced based on
necessary renovation; and (iii) any other amount necessary to compensate
Landlord for all the detriment directly caused by the Tenant’s failure to
perform its obligations under this Lease, including, but not limited to, the
cost of recovering possession of the Premises, expenses of reletting, including
renovation and alteration of the Premises, reasonable attorneys’ fees, and that
portion of any leasing commission paid by Landlord in connection with this
Lease
applicable to the unexpired Term (as of the date on which this Lease is
terminated). The excess amount referred to in provision (ii) of the immediately
preceding sentence shall be computed by discounting such amount at the current
yield, as of the date on which this Lease is terminated under this
Section 23.2.1, on United States Treasury Bills having a
maturity date closest to the stated Expiration Date of this Lease, plus one
percent per annum. Fair and reasonable efforts by Landlord to
mitigate damages caused by Tenant’s Default shall not waive Landlord’s right to
recover damages under this Section 23.2. If this
Lease is terminated through any unlawful entry and detainer action, Landlord
shall have the right to recover in such proceeding any unpaid Rent and damages
as are recoverable in such action, or Landlord may reserve the right to recover
all or any part of such Rent and damages in a separate suit; or
23.2.2. Continue
the Lease and either (a) continue Tenant’s right to possession or (b) terminate
Tenant’s right to possession and in the case of either (a) or (b), recover the
Rent as it becomes due. Acts of maintenance, efforts to relet, and/or
the appointment of a receiver to protect the Landlord’s interests shall not
constitute a termination of the Tenant’s right to possession; or
23.2.3. Pursue
any other remedy now or hereafter available under the laws of the state in
which
the Premises are located, including but not limited to drawing on the Letter
of
Credit.
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23.2.4. Without
limitation of any of Landlord’s rights in the event of a Default by Tenant,
Landlord may also exercise its rights and remedies with respect to the Letter
of
Credit under Section 4.3 above.
Any
and all personal property of Tenant
that may be removed from the Premises by Landlord pursuant to the authority
of
this Lease or of law may be handled, removed or stored by Landlord at the sole
risk, cost and expense of Tenant, and in no event or circumstance shall Landlord
be responsible for the value, preservation or safekeeping
thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges for such property
of
Tenant so long as the same shall be in Landlord’s possession or under Landlord’s
control. Any such property of Tenant not removed from the Premises as
of the Expiration Date or any other earlier date on which this Lease is
terminated shall be conclusively presumed to have been conveyed by Tenant to
Landlord under this Lease as in a ▇▇▇▇ of sale, without further payment or
credit by Landlord to Tenant. Neither expiration or termination of
this Lease nor the termination of Tenant’s right to possession shall relieve
Tenant from its liability under the indemnity provisions of this
Lease.
23.3 Additional
Rights of Landlord. All sums advanced by Landlord or
Agent on account of Tenant under this Section, or pursuant to any other
provision of this Lease, and all Base Rent and Additional Rent, if delinquent
or
not paid by Tenant and received by Landlord when due hereunder, shall bear
interest at the rate of 4% per annum above the “prime” or “reference” or “base”
rate (on a per annum basis) of interest publicly announced as such, from time
to
time, by the JPMorgan Chase Bank, NA, or its successor (“Default
Interest”), from the due date thereof until paid, and such interest
shall be and constitute Additional Rent and be due and payable upon Landlord’s
or Agent’s submission of an invoice therefor. The various rights,
remedies and elections of Landlord reserved, expressed or contained herein
are
cumulative and no one of them shall be deemed to be exclusive of the others
or
of such other rights, remedies, options or elections as are now or may hereafter
be conferred upon Landlord by law.
23.4 Event
of Bankruptcy. In addition to, and in no way limiting
the other remedies set forth herein, Landlord and Tenant agree that if Tenant
ever becomes the subject of a voluntary or involuntary bankruptcy,
reorganization, composition, or other similar type proceeding under the federal
bankruptcy laws, as now enacted or hereinafter amended, then: (a)
“adequate assurance of future performance” by Tenant pursuant to Bankruptcy Code
Section 365 will include (but not be limited to) payment of an additional/new
security deposit in the amount of three times the then current Base Rent payable
hereunder; (b) any person or entity to which this Lease is assigned, pursuant
to
the provisions of the Bankruptcy Code, shall be deemed, without further act
or
deed, to have assumed all of the obligations of Tenant arising under this Lease
on and after the effective date of such assignment, and any such assignee shall,
upon demand by Landlord, execute and deliver to Landlord an instrument
confirming such assumption of liability; (c) notwithstanding anything in this
Lease to the contrary, all amounts payable by Tenant to or on behalf of Landlord
under this Lease, whether or not expressly denominated as “Rent”, shall
constitute “rent” for the purposes of Section 502(b)(6) of the Bankruptcy Code;
and (d) if this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other considerations
payable or otherwise to be delivered to Landlord or Agent (including Base Rent,
Additional Rent and other amounts hereunder), shall be and remain the exclusive
property of Landlord and shall not constitute property of Tenant or of the
bankruptcy estate of Tenant. Any and all monies or other
considerations constituting Landlord’s property under the preceding sentence not
paid or delivered to Landlord or Agent shall be held in trust by Tenant or
Tenant’s bankruptcy estate for the benefit of Landlord and shall be promptly
paid to or turned over to Landlord.
24. BROKER. Tenant
covenants, warrants and represents that the broker set forth in Section
1.8(A) was the only broker to represent Tenant in the negotiation of
this Lease (“Tenant’s Broker”). Landlord shall be
solely responsible for paying the commission of Tenant’s
Broker. Except with respect to Tenant’s Broker in the case of Tenant,
Each party agrees to and hereby does defend, indemnify and hold the other
harmless against and from any brokerage commissions or finder’s fees or claims
therefor by a party claiming to have dealt with the indemnifying party and
all
costs, expenses and liabilities in connection therewith, including, without
limitation, reasonable attorneys’ fees and expenses, for any breach of the
foregoing. The foregoing indemnification shall survive the
termination or expiration of this Lease.
25. MISCELLANEOUS.
25.1 Merger. All
prior understandings and agreements between the parties are merged in this
Lease, which alone fully and completely expresses the agreement of the
parties. No agreement shall be effective to modify this Lease, in
whole or in part, unless such agreement is in writing, and is signed by the
party against whom enforcement of said change or modification is
sought.
25.2 Notices. Any
notice required to be given by either party pursuant to this Lease, shall be
in
writing and shall be deemed to have been properly given, rendered or made only
if (a) personally delivered, or (b) if sent by Federal Express or other
comparable commercial overnight delivery service, or (c) sent by certified
mail,
return receipt requested and postage prepaid addressed (in the case of any
or
all of (a), (b) and (c) above) to the other party at the addresses set forth
below each party’s respective signature block (or to such other address as
Landlord or Tenant may designate to each other from time to time by written
notice), and shall be deemed to have been given, rendered or made (i) on the
day
so delivered or (ii) in the case of overnight courier delivery on the first
business day after having been deposited with the courier service, and (iii)
in
the case of certified mail, on the third (3rd) business
day
after deposit with the U.S. Postal Service, postage prepaid.
25.3 Non-Waiver. The
failure of either party to insist, in any one or more instances, upon the strict
performance of any one or more of the obligations of this Lease, or to exercise
any election herein contained, shall not be construed as a waiver or
relinquishment for the future of the performance of such one or more obligations
of this Lease or of the right to exercise such election, but the Lease shall
continue and remain in full force and effect with respect to any subsequent
breach, act or omission. The receipt and acceptance by Landlord or
Agent of Base Rent or Additional Rent with knowledge of breach by Tenant of
any
obligation of this Lease shall not be deemed a waiver of such
breach.
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25.4 Attorneys'
Fees. If either party defaults in the performance or
observance of any of the terms, conditions, covenants or obligations contained
in this Lease and the non-defaulting party obtains a judgment against the
defaulting party, then the defaulting party agrees to reimburse the
non-defaulting party for reasonable attorneys' fees incurred in connection
therewith. In addition, if a monetary Default shall occur and
Landlord engages outside counsel to exercise its remedies hereunder, and then
Tenant cures such monetary Default, Tenant shall pay to Landlord, on demand,
all
reasonable expenses incurred by Landlord as a result thereof, including
reasonable attorneys' fees, court costs and expenses actually
incurred.
25.5 Parties
Bound. Except as otherwise expressly provided for in
this Lease, this Lease shall be binding upon, and inure to the benefit of,
the
successors and assignees of the parties hereto. Tenant hereby
releases Landlord named herein from any obligations of Landlord for any period
subsequent to the conveyance and transfer of Landlord’s ownership interest in
the Premises. In the event of such conveyance and transfer,
Landlord’s obligations shall thereafter be binding upon each transferee (whether
Successor Landlord or otherwise). No obligation of Landlord shall
arise under this Lease until the instrument is signed by, and delivered to,
both
Landlord and Tenant.
25.6 Recordation
of Lease. Tenant shall not record or file this Lease (or
any memorandum hereof) in the public records of any county or
state.
25.7 Governing
Law; Construction. This Lease shall be governed by and
construed in accordance with the laws of the state in which the Premises is
located. If any provision of this Lease shall be invalid or
unenforceable, the remainder of this Lease shall not be affected but shall
be
enforced to the extent permitted by law. The captions, headings and
titles in this Lease are solely for convenience of reference and shall not
affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against the
party
causing this Lease to be drafted. Each covenant, agreement,
obligation, or other provision of this Lease to be performed by Tenant, shall
be
construed as a separate and independent covenant of Tenant, not dependent on
any
other provision of this Lease. All terms and words used in this
Lease, regardless of the number or gender in which they are used, shall be
deemed to include any other number and any other gender as the context may
require. This Lease may be executed in counterpart and, when all
counterpart documents are executed, the counterparts shall constitute a single
binding instrument.
25.8 Time. Time
is of the essence for this Lease. If the time for performance
hereunder falls on a Saturday, Sunday or a day that is recognized as a holiday
in the state in which the Premises is located, then such time shall be deemed
extended to the next day that is not a Saturday, Sunday or holiday in said
state.
25.9 Authority
of Tenant. Tenant and the person(s) executing this Lease
on behalf of Tenant hereby represent, warrant, and covenant with and to Landlord
as follows: the individual(s) acting as signatory on behalf of Tenant
is(are) duly authorized to execute this Lease; Tenant has procured (whether
from
its members, partners or board of directors, as the case may be), the requisite
authority to enter into this Lease; this Lease is and shall be fully and
completely binding upon Tenant; and Tenant shall timely and completely perform
all of its obligations hereunder.
25.10 WAIVER
OF TRIAL BY JURY. THE LANDLORD AND THE TENANT, TO THE
FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN
ANY
ACTION OR PROCEEDING BROUGHT BY ANY PARTY TO THIS LEASE WITH RESPECT TO THIS
LEASE, THE PREMISES, OR ANY OTHER MATTER RELATED TO THIS LEASE OR THE
PREMISES.
25.11 Financial
Information. In connection with any
sale of the Premises, refinancing of the Premises, or in connection with any
attempted assignment which Tenant may request under Section 8
above, Tenant shall deliver to Landlord information and documentation describing
and concerning Tenant’s financial condition, and in form and substance
reasonably acceptable to Landlord, within ten (10) days following Landlord’s
written request therefore. Upon Landlord’s request, Tenant shall provide to
Landlord the most currently available audited financial statement of Tenant,
or
if such is unavailable, a consolidated financial statement that includes
affiliates; and if no such audited financial statement is available, then Tenant
shall instead deliver to Landlord its most currently available balance sheet
and
income statement which may be a consolidated statement. Furthermore, upon the
delivery of any such financial information from time to time during the Term,
Tenant shall be deemed to automatically represent and warrant to Landlord that
the financial information delivered to Landlord is true, accurate and complete
in all material respects, and that there has been no material adverse change
in
the financial condition of Tenant since the date of the then applicable
financial information.
17
25.12 Confidential
Information. Except to the extent disclosure is required
by law, Tenant agrees to maintain in strict confidence the economic terms of
this Lease and any or all other materials, data and information delivered to
or
received by any or all of Tenant and Tenants’ Parties either prior to or during
the Term in connection with the negotiation and execution hereof. The
provisions of this Section 25.12 shall survive the termination
of this Lease.
25.13 Submission
of Lease. Submission of this Lease to Tenant for
signature does not constitute a reservation of space or an option to
lease. This Lease is not effective until execution by and delivery to
both Landlord and Tenant.
25.14 Lien
Prohibition. Tenant shall not permit any Tenant’s
Parties to attach mechanics or materialmen’s liens to the
Premises. Tenant, at its expense, shall procure the satisfaction or
discharge of record of all such liens and encumbrances within 30 days after
the
filing thereof; or, within such thirty (30) day period, Tenant shall provide
Landlord, at Tenant’s sole expense, with endorsements (satisfactory, both in
form and substance, to Landlord and the holder of any mortgage or deed of trust)
to the existing title insurance policies of Landlord and the holder of any
mortgage or deed of trust, insuring against the existence of, and any attempted
enforcement of, such lien or encumbrance. In the event Tenant has not
so performed, Landlord may, at its option, pay and discharge such liens and
Tenant shall be responsible to reimburse Landlord, on demand and as Additional
Rent under this Lease, for all costs and expenses incurred in connection
therewith, together with Default Interest thereon, which expenses shall include
reasonable fees of attorneys of Landlord’s choosing, and any costs in posting
bond to effect discharge or release of the lien as an encumbrance against the
Premises.
25.15 Counterparts. This
Lease may be executed in multiple counterparts, but all such counterparts shall
together constitute a single, complete and fully-executed document.
25.16 Buyout
Allowance. As a material inducement to Tenant’s
execution of this Lease, Landlord shall remit the sum of Nine Hundred Sixty
Three Thousand Seven Hundred Ninety Six and 00/100 Dollars ($963,796.00) on
or
before the date set forth in Section 1.10 in reimbursement to
Tenant of costs incurred in connection with Tenant’s termination and
extinguishment of its existing Lease in accordance with the Amended and Restated
Second Amendment to Lease attached as
Exhibit E. Tenant represents and warrants to
Landlord that the utilization of such funds shall be sufficient for Tenant
to
fully satisfy Tenant’s early termination payment obligations under such
Lease.
25.17 IntentionallyOmitted.
25.18 Extension
Options. Tenant is granted the options to extend the
Term for two (2) consecutive extended terms of five (5) years each, provided
(a)
Tenant is not in Default (i) at the time of exercise of the respective option
and (ii) as of the commencement of the relevant extended term; and (b) Tenant
delivers written notice of its exercise of the respective option at least one
hundred eight (180) days prior to the expiration of the original Term or the
expiration of the then existing term. Each extension term shall be
upon the same terms and conditions, except Monthly Base Rent shall be increased
by three percent (3%) per year during each extension term.
25.19 Government
Incentives. Each party hereto acknowledges that Tenant
intends to pursue certain governmental incentives, abatements, and grants
relating to its buildout, use, and occupancy of the Premises, and such
incentives and abatements may include payments or reimbursements to Tenant
relating to impact fees, sewer fees, tax incentives and similar
benefits. It is acknowledged and agreed that Tenant shall be entitled
to retain any payments, incentives, abatements, or grants that it or its agents
or employees obtain or secure related to the Premises.
25.20 Parking. Tenant
shall have the use of the all parking spaces shown on the site plan attached
to
Exhibit B.
[Signature
Page Follows]
18
IN
WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
LANDLORD:
First
Industrial Investment, Inc., a Maryland corporation
By: illegible
Its:
TENANT:
CHD
Meridian Healthcare, LLC, a Delaware limited liability company
By: /s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Its: Chairman
Landlord’s
Addresses for
Notices: Tenant’s
Addresses for Notices:
First
Industrial Investment,
Inc. CHD
Meridian Healthcare, LLC
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Executive Vice
President-Operations Attn:
Chief Executive Officer
With
a
copy
to: With
a copy to:
First
Industrial Realty Trust,
Inc. CHD
Meridian Healthcare, LLC
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇-▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇
▇▇▇▇▇▇▇ Attn:
General Counsel
With
a
copy to:
First
Industrial Realty Trust, Inc.
▇▇▇▇
▇.
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇
▇▇▇▇▇
With
a
copy to:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
19
LEASE
EXHIBIT B
CONSTRUCTION
OF IMPROVEMENTS
The
LEASE
EXHIBIT
B sets forth the rights and obligations of Landlord and Tenant
with
respect to the construction of the Improvements (as hereinafter
defined).
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1.
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DEFINITIONS. For
purposes of this Exhibit, the following terms shall have the following
meanings, and terms which are not defined below, but which are defined
in
the Lease, shall have such meanings herein as are ascribed to such
terms
by the Lease:
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1.1
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Final
Project Plans. The term “Final Project
Plans” shall mean the Working Drawings (as hereinafter defined)
as modified as of the Plans Approval Date, by such changes, additional
information and specifications as contemplated by Section
2 of this Exhibit B, and as further modified by
any Change Orders, Required Change Orders or Tenant’s Extra Work (each as
hereafter defined), as applicable.
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1.2
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Preliminary
Plans. The term “Preliminary Plans” shall
mean the outline specifications and preliminary drawings prepared
on
behalf of Landlord and approved by Tenant for the Improvements to
be
constructed which are described in attached Exhibit
B-1.
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1.3
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Improvements. The
term “Improvements” shall mean the building
(the ”Building”) located on the Premises containing
approximately 50,000 square feet of office space (as measured by
BOMA
Standards), together with all related nonstructural improvements
and
utilities to be located on the Premises, site development work (including
access roads, curb cuts, parking, sidewalks, utilities and landscaping)
and all interior alterations to be constructed by Landlord pursuant
to the
Construction Contract (defined below), all to be as more particularly
shown and described in the Final Project Plans. Unless
specifically agreed to by Landlord, the Improvements shall not include
any
Tenant Improvements (as hereinafter defined), whether or not such
Tenant
Improvements are described in the Final Project
Plans.
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1.4 Project. The
term “Project” shall mean the Premises and the
Improvements.
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1.5
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Substantial
Completion and Substantially Complete. The terms
“Substantial Completion” and “Substantially
Complete” shall mean the condition of the Improvements when the
earliest of any of the following have occurred: (i) the date
Tenant begins conducting business or commences operations within
the
Building, or (ii) the date on which a temporary or final certificate
of
occupancy has been issued for the Tenant Improvements and the Improvements
by the governmental authority having jurisdiction to issue the same;
provided, however, if such certificate of occupancy could not be
obtained
because of any Tenant Delays (as hereinafter defined), then, for
purposes
hereof, Substantial Completion shall be deemed to occur on the date
on
which such certificate of occupancy would otherwise have been issued
but
for such Tenant Delays.
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1.6
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Tenant
Improvements. “Tenant
Improvements” shall mean all furniture, fixtures, and equipment
and any additional alterations, additions or improvements to be made
or
constructed by Tenant to the interior of the Premises, as described
on
Exhibit B-2 hereof and which is otherwise subject to
Landlord’s consent. Landlord shall reimburse Tenant for the
costs of the Tenant Improvements, plus moving expenses up to $1,750,000
(the “TI Allowance”). In addition, at the
written request of Tenant, Landlord shall apply a portion of the
TI
Allowance to (i) pay any Additional Project Costs that Tenant is
required
to pay under Section 5.2 of this Exhibit
B, (ii) pay Base Rent in the event that any TI Allowance
is
unused as of Substantial Completion of the Tenant Improvements, or
(iii)
reimburse Tenant an amount equal to $2,300 per day for each day after
May
1, 2008 until Substantial Completion, if Excused Delays prevent
Substantial Completion by May 1, 2008 and Tenant is not reimbursed
under
Section 3.1. To the extent applicable, Tenant
shall submit to Landlord any plans, drawings or descriptions of the
Tenant
Improvements (“TI Plans”), which shall be subject to
Landlord’s prior written approval, such approval shall not be unreasonably
withheld or
delayed.
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B-1
Tenant
shall submit invoices and applications for payment received from its architect
and contractor and approved by Tenant, with such invoices and applications
for
payment to be on AIA form G702, together with lien waivers from the contractor
and appropriate subcontractors together with any other evidence reasonably
required by Landlord, its title insurer or lender, in form and substance
reasonably satisfactory to Landlord, its title insurer or lender, that there
are
no parties entitled to place a lien against the real property underlying the
Premises on a monthly basis. Landlord shall fund the amounts approved
by Tenant for payment directly to the Tenant’s architect and contractor within
ten (10) business days of receipt, provided that Landlord shall have no
obligation to fund any amount in excess of the TI Allowance. All
costs of the Tenant Improvements in excess of the TI Allowance shall be paid
by
Tenant as and when due; provided, however, that at Tenant’s request, subject to
the limitation set forth in Section 2.4
below, Landlord shall increase the TI Allowance by up to an
additional five dollars ($5.00) per square foot of the Premises. If
Tenant exercise this right, the additional TI Allowance, together with interest
at nine percent (9%) per annum, shall be amortized in equal monthly installments
of Base Rent over the initial term of the Lease and the Base Rent rate reflected
in Section 2.2 of the Lease shall be adjusted upward
accordingly to include such amortized amount. Landlord and Tenant shall execute
an amendment to this Lease memorializing the increase in the Base Rent rate
payable prior to the remittance or crediting of such funds to Tenant. In the
event a Change Order requested by Tenant and approved by Landlord results in
a
discernable net reduction in Landlord’s costs to construct the Improvements, the
amount of such net reduction shall be added to the amount of the TI Allowance
available to Tenant pursuant to this Section 1.6.
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1.7
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Additional
Project Costs. The term “Additional
Project Costs” shall mean all out-of-pocket, unreimbursed hard
and soft costs incurred or committed by Landlord including, without
limitation, all design fees and expenses, construction costs, general
conditions, insurance, financing costs (actual and imputed),
inspection fees, commissions, consultants’ and attorneys’ fees,
General Contractor’s fees, architect’s fees, due diligence costs, and
other development costs in connection with the Project to the extent
that
any of the aforementioned costs are the result of any of the
following: (a) pursuing or obtaining any entitlements or
incentives in connection with the Project, to the extent such are
requested by Tenant, or to the extent such will directly benefit
Tenant
and Tenant has consented to Landlord’s pursuit of such; (b) changes
to the Project Scope or Working Drawings pursuant to Section 2.1,
2.2 or
Section 4 below, except no Additional Project Cost shall be incurred
to
the extent such are either (i) necessary to conform to the Preliminary
Plans, or (ii) made or requested by Landlord and are not a Required
Change
Order; (c) changes in any Applicable Laws (as hereinafter defined);
(d)
any Required Change Order or Change Order requested or necessitated
by
Tenant; (e) Tenant’s Extra Work; (f) any Excused Delays (as hereinafter
defined); or (g) changes required by governmental authorities due
to code
interpretations, except to the extent such are errors or omissions
are the
responsibility of General Contractor or Architect. For purposes
hereof, Change Orders shall be deemed to include an overhead, profit
and
building supervision charge of ten percent (10%) of the total cost
relating to the applicable Change
Order.
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2.
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APPROVAL
OF PLANS. Tenant hereby acknowledges that Tenant
has approved the Preliminary Plans. Landlord and Tenant agree
the Preliminary Plans do not constitute a set of working drawings
that are
sufficient to perform the work necessary to complete the Improvements;
however, the parties agree that the Preliminary Plans are sufficient
to
define, and shall constitute, the definition of the scope of the
work for
the Improvements (the “Project
Scope”).
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2.1
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Preparation
and Approval of Plans. Landlord shall cause to be
prepared drawings and specifications (“Working Drawings”)
that are consistent with the Project Scope and necessary for construction
of the Improvements. Landlord warrants that the Working
Drawings shall be prepared for the benefit of Landlord and Tenant
by a
licensed architect employed by Landlord’s General
Contractor. Landlord shall deliver the Working Drawings to
Tenant for Tenant’s review and approval (which approval shall not be
unreasonably withheld). For purposes of the Lease, Tenant shall
not have the right to require Landlord to make material modifications
to
the Project Scope, including material modifications to the Preliminary
Plans. Any such material modifications or additional work
beyond the Project Scope shall be governed by Section 4
of this Exhibit B. Tenant, acting reasonably
and in good faith, shall have ten (10) business days from Landlord’s
delivery of the Working Drawings to advise Landlord, in writing,
as to
whether or not Tenant desires any changes to the Working Drawings
because
of a material deviation from the Preliminary Plans. If Tenant
fails to timely respond, Tenant shall automatically be deemed to
have
approved the Working Drawings. If Tenant timely requests a
change to the Working Drawings (“Tenant’s Objection”),
Tenant shall also, within such ten (10) business day period, advise
Landlord, with reasonable specificity and detail, of Tenant’s Objection,
and provided Landlord, in its good faith reasonable discretion, determines
and agrees that such requested change is necessary or appropriate,
Landlord shall then use its reasonable efforts to incorporate such
change
in the Working Drawings as soon as reasonably practicable after delivery
of Tenant’s Objection (without such change constituting additional work or
a Change Order). Upon approval or deemed approval of the
Working Drawings, those Working Drawings shall replace, be utilized
and
relied upon in lieu of the Preliminary Plans. The date on which
Landlord and Tenant mutually agree upon the Working Drawings, or
the date
on which Tenant is deemed to have approved them, whichever is applicable,
shall be referred to as the “Plans Approval
Date”. After the Plans Approval Date, Landlord shall
not be required to make any changes to the Working Drawings, except
to the
extent expressly set forth in this Exhibit
B.
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B-2
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2.2
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Changes
to Work. After the Plans Approval Date, except as
otherwise required in this Exhibit B, neither Landlord
nor Tenant shall have the right to order extra work or change orders
with
respect to the construction of the Improvements without the prior
written
consent of the other. Extra work or change orders requested by
either Landlord or Tenant after the Plans Approval Date (each a
“Proposed Change Order”) shall be made in writing, shall
specify in detail any added or reduced cost and/or estimate of
construction delay resulting therefrom, and shall become effective
and a
part of the Final Project Plans once approved in writing by both
Landlord
and Tenant (a “Change Order”). Landlord and
Tenant each agree that it shall respond to a Proposed Change Order
within
five (5) business days after receipt of the Proposed Change
Order. No Proposed Change Order will be effective if the
content of such Change Order is not permitted by applicable building
and
zoning regulations, as the same are then in effect, interpreted and
enforced by the applicable governmental
authorities. Notwithstanding the foregoing, Landlord shall be
entitled to make changes to the Working Drawings without the approval
of
Tenant, to the extent such changes (“Required Change
Orders”) (i) are necessary to conform with changes after the date
of the Preliminary Plans in requirements of any governmental or
quasi-governmental or administrative code, rule, law, approval or
other
authority as the same are then in effect, or by interpretations or
enforcement by the applicable governmental authorities pursuant to
a
written directive or law from such governmental or quasi-governmental
authority, or (ii) are due to any Off-Site Items (as defined in
Section 3.5 below), or (iii) are due to any Excused
Delay.
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2.3
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Construction
Contract. The parties acknowledge
that Landlord shall enter into a contract for construction (the
“Construction Contract”) of the Improvements with ▇.▇.
▇▇▇▇▇▇▇▇ Contractor, Inc. or other contractor approved by Tenant
(the
“General Contractor”), with such Contract to include a
guaranteed maximum price consistent with the Allowances set forth
on
Exhibit B-4. Landlord may elect to replace, in Landlord’s sole
discretion, the General Contractor at any time. Without limitation
on
Landlord’s obligations hereunder, Landlord shall not be liable
to Tenant for any loss, damage or injury to Tenant or Tenant’s personal
property that results from the acts or omissions of the General Contractor
or its employees, agents, representatives or contractors, provided,
however, that Landlord shall use commercially reasonable efforts
to
require General Contractor and its subcontractors to indemnify and
hold
harmless Tenant from any such loss, damage or injury and shall include
standard indemnification language benefiting Tenant in each of the
foregoing construction contracts, and Tenant shall be named as an
additional insured and loss payee on all general liability, builders
risk
and other coverages held by General Contractor and its subcontractors
will
deliver to Tenant a copy of the Construction Contract promptly following
its execution.
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2.4
|
Allowances. Landlord
and Tenant acknowledge and agree that the allowances (such allowances,
together with any allowances that may be included in the Final Project
Plans or that are agreed upon between Landlord and Tenant are collectively
referred to herein as the “Allowances”) set forth on
Exhibit B-4 are included in the Landlord’s estimate of
the costs for construction of the Improvements and reflected in the
Base
Rent amount, and that such Allowances form the basis of the construction
budget for Improvements. Landlord and Tenant shall agree upon the
amount
of the Allowances on or before the Plans Approval Date, and agree
to
execute a writing memorializing such agreement upon either party’s
request. In the event that the total amount of all Additional
Project Costs incurred by Landlord with respect to work relating
to any
Allowances is more than the aggregate amount of all Allowances, then
Tenant shall be responsible for payment of such excess in accordance
with
Section 5.2 of this Exhibit
B. However, in the event that Additional Project Costs
are payable by Tenant, at Tenant’s request, Landlord shall increase the TI
Allowance by up to an additional Five and 00/100 Dollars ($5.00)
per
square foot of the Premises and allow Tenant to use the TI Allowance
to
pay such Additional Project Costs; provided that such increased TI
Allowance, together with interest at nine percent (9%) per annum,
shall be
amortized in equal monthly installments of Base Rent over the initial
term
of the Lease, and the Base Rent rate reflected in Section
2.2 of the Lease shall be adjusted upward accordingly to include
such amortized amount. Notwithstanding anything to the contrary
set forth herein, in no event may the aggregate amount of increase
to the
TI Allowance over and above the amount of the TI Allowance referenced
in
Section 1.6 exceed Five and 00/100 Dollars ($5.00) per
square foot of the Premises.
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B-3
3. CONSTRUCTION
OF IMPROVEMENTS.
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3.1
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Commencement
and Completion of Construction of
Improvements. Landlord shall, at Landlord’s sole
cost and expense (except as otherwise provided herein), cause to
be
provided all of the design, material, labor and equipment required
to
construct the Improvements on the Premises (and obtain any permits
relating to such Improvements), pursuant to and as described by the
Final
Project Plans. The Improvements shall be constructed in a good
and workmanlike manner, in accordance with the requirements of the
Final
Project Plans and in accordance with all applicable statutes, ordinances
and building codes, governmental rules, regulations and orders relating
to
construction of the Improvements (but not relating to Tenant’s use)
(“Applicable Laws”). Landlord shall cause (i)
the Improvements to be sufficiently constructed to allow the Tenant
Improvements to commence on February 18, 2008, and continue thereafter,
and (ii) to Substantially Complete the Improvements by May 1, 2008
(each
of (i) and (ii) is a “Target Substantial Completion
Date”; collectively they are referred to herein as the
“Target Substantial Completion Dates”). The
initial construction schedule is attached hereto as Exhibit
B-5. It is acknowledged and agreed that once Tenant commences
the Tenant Improvements, both Landlord and Tenant shall use commercially
reasonable efforts, employed in good faith, to cause their respective
contractors and laborers performing the Improvements and Tenant
Improvements, respectively, to coordinate and work cooperatively
to avoid
material interference with each other in the simultaneous completion
of
the Improvements and Tenant Improvements. Each of Landlord and
Tenant agree to act in good faith to notify the other with reasonable
promptness at such time that it should appear that the completion
of the
Improvements, and Tenant Improvements, as the case may be, shall
be
materially delayed for any reason and each party agrees to work
cooperatively with the other to make appropriate adjustments in each
respective construction schedule, to the extent that circumstances
reasonably allow, to help facilitate completion of the Improvements
and
Tenant Improvements, provided that such obligation(s) shall not vitiate
the provisions of Section 3.2 or Section
3.3 below. Notwithstanding the parties foregoing obligations
to
act cooperatively and in good faith and adjust the construction schedule,
Landlord acknowledges that, subject to Excused Delays, Landlord shall
pay
the Tenant $2,300 for each calendar day of delay in a Target Substantial
Completion Date. LANDLORD ACKNOWLEDGES THAT (A) THE LATE FEE
PROVIDED FOR IN THIS SECTION IS NOT A PENALTY BUT INSTEAD ESTABLISHES
LIQUIDATED DAMAGES THAT ARE REASONABLE GIVEN THE CIRCUMSTANCES NOW
EXISTING (INCLUDING WITHOUT LIMITATION, THE RANGE OF HARM TO TENANT
THAT
IS REASONABLY FORESEEABLE AND THE ANTICIPATION THAT PROOF OF TENANT’S
ACTUAL DAMAGES WOULD BE COSTLY, IMPRACTICAL AND INCONVENIENT) AND
(B) IT
UNDERSTANDS THE PROVISIONS OF THIS SECTION. In the event that
Excused Delays prevent Substantial Completion by May 1, 2008, and
Tenant
is not otherwise reimbursed under this Section 3.1, at Tenant’s request,
Landlord shall pay Tenant an amount equal to $2,300 per day for each
day
after May 1, 2008, until Substantial Completion, provided, that such
amount shall be charged to the Tenant’s TI
Allowance.
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3.2
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Force
Majeure Delays. If Landlord, as the result of any
(a) strikes, lockouts or labor disputes, (b) delays in obtaining
labor or
materials or reasonable substitutes therefore of which Landlord or
General
Contractor had no reason to expect at the time of contracting for
same,
(c) abnormal inclement weather which delays or precludes construction,
acts of God or the public enemy, condemnation, civil commotion, fire
or
other casualty, (d) shortage of fuel, (e) action or nonaction of
public
utilities or of local, state or federal governments, affecting the
work,
the occurrence of which Landlord or General Contractor had no reason
to
anticipate including, but not limited to, delays in the permitting
process
as a result of the action or inaction or such governmental authorities,
or
(f) other conditions similar to those enumerated above which are
beyond
the reasonable anticipation of Landlord or General Contractor, such
that
the Landlord cannot reasonably perform any obligation on Landlord’s part
to be performed hereunder within the time periods herein specified
(collectively, the “Force Majeure Delays”), then such
failure shall be excused and shall not be a breach of Landlord’s
obligations under this Lease, and the deadline for performance shall
be
extended for a period equal to the period of delay, and Landlord
will
notify Tenant of the nature and probable duration of such
delay. Landlord shall make reasonable best efforts
to minimize the impact of such
delay.
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B-4
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3.3
|
Tenant
Delays. If Landlord shall be delayed in
Substantially Completing the Improvements as a result of any Tenant
Delays, then the Commencement Date and the payment of Rent under
the Lease
shall not be affected or deferred on account of any such Tenant
Delays. “Tenant Delays” shall mean actual net
delays in substantial completion of the Improvements attributed to
any or
all of the following:
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(a)
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Tenant’s
failure to respond to Change Orders on a timely basis and/or to pay
invoices (within five (5) business days of submission thereof to
Tenant)
for Additional Project Costs in accordance herewith;
or
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(b)
|
Except
for Tenant’s Objection, Tenant’s changes in any or all of the Preliminary
Plans, the Working Drawings and the Final Project Plans;
or
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(c)
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The
performance or completion by Tenant, or any person, firm or corporation
employed by Tenant or its representatives or agents, of any work
in or
about the Premises, including, but not limited to, the Tenant
Improvements; or
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(d)
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The
performance or completion of any Tenant Extra Work to the extent
that such
delay was set forth in an Estimate (hereinafter defined) and approved
by
Tenant; or
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(e)
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The
acts or omissions of Tenant or its agents, employees, representatives,
invitees, contractors; or
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(f)
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Tenant’s
failure to timely comply with its obligations under the Lease;
or
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(g)
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A
Change Order approved by Tenant.
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Tenant
hereby indemnifies, defends and holds Landlord Indemnified Parties
harmless from and against any and all Losses suffered or incurred
by
Landlord or a Landlord Indemnified Party as a result of, or the cause
of,
any Tenant Delays.
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Landlord
shall promptly notify Tenant of any Force Majeure Delays and Tenant Delays
(collectively, “Excused Delays”) and the nature thereof, which
notice shall further specify (i) the anticipated delay in the Target Substantial
Completion Date resulting from such Excused Delays as of the date of such
notice; (ii) the nature of such Excused Delays and whether any such Excused
Delays constitute Tenant Delays or Force Majeure Delays; (iii) whether the
conditions, events, acts, omissions or circumstances giving rise to such Excused
Delays persist as of the date of such notice, and (iv) the revised construction
schedule. Tenant shall have a reasonable period of time to dispute
the validity of any Excused Delays (including, without limitation, the extent
of
the delay in the Target Substantial Completion Date resulting from any Excused
Delay) and any dispute which cannot be resolved among the Tenant, Landlord
and
General Contractor shall be resolved by mediation and then binding
arbitration.
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3.4
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Additional
Items Affecting Construction. Tenant shall consent
(and subordinate its leasehold interest) to, any easements which
benefit
of the Premises Landlord reasonably deems necessary in order to complete
construction of the Improvements in accordance with the Final Project
Plans and Applicable Laws, including matters pertaining to access,
utility
or other lines relating to the Improvements, provided that such easements
will not materially interfere with Tenant’s business operations at the
Premises.
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B-5
|
3.5
|
Off-Site
Requirements. Notwithstanding anything to the
contrary contained herein, to the extent that in connection with
obtaining
permits and approvals, complying with Applicable Laws or the design
and/or
construction of the Improvements, any off-site improvements or other
off-site items which were not reasonably anticipated or included
in the
Final Project Plans by the Architect or General Contractor (collectively,
the “Off-Site Items”) are required to be addressed or
implemented into the Improvements, Tenant hereby agrees and acknowledges
that such Off-Site Items shall be included in the Final Project Plans
(through a Required Change Order, if necessary). The cost of
such Off-Site Items shall be included in Additional Project Costs
and any
delays on account of such Off-Site Items shall be included as Excused
Delays.
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4.
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TENANT’S
EXTRA WORK. If Tenant desires that any work be
performed in connection with the construction of the Improvements
other
than, or in addition to, the work described in the Working Drawings,
as
approved by Landlord and Tenant (such other work is hereinafter called
“Tenant’s Extra Work”), the following provisions shall be
applicable:
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4.1
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Tenant
shall, at its sole cost and expense, furnish to Landlord, Landlord’s
architect, the General Contractor, and any electrical and mechanical
consultants engaged by Landlord (collectively, “Landlord’s
Consultants”), such information as may reasonably be necessary to
cause Landlord’s Consultants to prepare and submit to Landlord all
necessary drawings, plans and specifications covering the Tenant’s Extra
Work (such drawings, plans and specifications are hereinafter called
“Tenant’s Extra Work Plans”). Tenant shall pay
the fees and expenses of Landlord’s Consultants to prepare Tenant’s Extra
Work Plans within 10 business days of Landlord’s delivery of the billing
statement(s) therefor. Tenant, at its sole option, may use its
TI Allowance to pay such amounts.
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4.2
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Landlord
agrees to construct the Tenant’s Extra Work provided (i) the Tenant’s
Extra Work Plans are acceptable to Landlord, in Landlord’s sole
discretion, and approved in writing by Landlord, and (ii) Tenant
has not
defaulted under, or otherwise breached, the terms and provisions
of the
Lease.
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4.3
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Prior
to commencing any Tenant’s Extra Work, Landlord shall submit to Tenant for
Tenant’s approval, a written estimate of the cost of Tenant’s Extra Work
and any projected delay in the Target Substantial Completion Date
resulting from the proposed Tenant’s Extra Work (the
“Estimate”). Landlord shall not be obligated
to proceed with Tenant’s Extra Work until the Estimate is approved in
writing by Tenant. Tenant shall have five (5) business days
from Landlord’s delivery of the Estimate to advise Landlord of Tenant’s
approval or disapproval thereof. If Tenant fails to timely
approve the Estimate, then Tenant shall automatically be deemed to
have
disapproved the Estimate and therefore, Landlord shall have no obligation
to perform Tenant’s Extra Work. The costs incurred in the
performance of Tenant’s Extra Work is due and payable as Additional
Project Costs pursuant to Section 5.2 of this
Exhibit B; provided, however, Landlord may instead elect
to require that Tenant pay the costs of Tenant’s Extra Work to Landlord
within a reasonable period of time prior to such time as Landlord
is
obligated to pay the General Contractor for such work pursuant to
the
Construction Contract (whether on a percentage of completion basis
or
otherwise). If Landlord makes such election and Tenant fails
timely to make any payments for Tenant’s Extra Work, Landlord may
immediately cease to perform the Tenant’s Extra Work and any delays in the
Target Substantial Completion Date set forth in the Estimate shall
nonetheless remain effective for all relevant purposes. For
purposes hereof, Tenant’s Extra Work shall be deemed to also include the
cost of an overhead, profit and building supervision charge of five
percent (5%) of the total cost of Tenant’s Extra
Work.
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B-6
5. COMMENCEMENT
DATE AND PAYMENT OF ADDITIONAL PROJECT COSTS.
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5.1
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Commencement
Date. Tenant shall be liable to Landlord for the
payment of Rent and any other payment as set forth in the
Lease. The “Commencement Date” under the Lease
shall be five (5) business days after the later of (1) date on which
the
Improvements and Tenant Improvements are Substantially Completed
and (2)
May 1, 2008; provided, however, in the event Substantial Completion
of the
Improvements and any Tenant Improvements is delayed due to Tenant
Delays,
then for purposes of the payment Rent and any other payment required
to be
made by Tenant pursuant to the Lease, the Commencement Date shall
be that
date five (5) business days after the date on which the Improvements
would
have been Substantially Completed but for the occurrence of such
Tenant
Delays. If the Improvements are not Substantially Completed but
are partially ready for occupancy, Tenant may, but need not, occupy
the
portion of the Premises that is ready for occupancy, provided such
partial
occupancy is permitted by applicable law, and in the event of such
partial
occupancy (other than occupancy necessary to complete the Tenant
Improvements), Tenant shall pay to Landlord pro rata Rent based upon
the
area of the Premises so occupied by Tenant. Such obligation to
pay Rent on a proportionate basis shall commence on the date on which
Tenant first occupies and takes possession of any portion of the
Premises,
and shall continue through the Commencement Date. Tenant’s
right to so occupy and utilize a portion of the Premises shall
nevertheless be subject to Landlord’s reasonable approval, and throughout
such partial occupancy, Tenant shall fully cooperate with Landlord
to
facilitate Landlord’s Substantial Completion of any remaining or
outstanding Improvements without any interference. If Tenant
occupies any portion of the Premises prior to Substantial Completion
thereof, the provisions of the Lease shall apply to such occupancy
or use
of the Premises by Tenant, except that the Term of the Lease shall
not
commence until the Commencement
Date.
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5.2
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Payment
of Additional Project Costs. Landlord and Tenant
acknowledge and agree that the annual Base Rent described in
Section 2.2 of the Lease is based upon a good faith
reasonable estimate of project costs (as evidenced by the Allowances),
which amount was determined to be the costs to be incurred by Landlord
in
completing the Improvements in accordance with the Preliminary Plans
and
the Construction Contract. Landlord and Tenant further
acknowledge and agree that any Additional Project Costs in excess
of the
aggregate amount of Allowances shall be the responsibility of
Tenant. Tenant shall pay the amount of such excess when
incurred by Landlord pursuant to the terms of this Section
5.2 unless payment is accomplished by charging such amount
against the TI Allowance pursuant to Section 1.6 and 2.4
above. At such time as Landlord may incur, be committed to, or
be obligated to pay any Additional Project Costs in excess of the
aggregate amount of Allowances, Landlord shall notify Tenant of the
nature
and amount of such excess. Tenant shall pay Landlord such
amount within ten (10) days after receipt of Landlord’s notice of same or
request that such be paid by Landlord from the TI Allowance. In
no event shall Landlord be required to execute any Change Order with
Tenant or work order or change order with Contractor approving any
work
that is the subject of or relating to the applicable Additional Project
Costs until Landlord receives payment of the amount due from Tenant
or a
request that such be paid by charging such amount against the TI
Allowance
as provided in Section 1.6 and 2.4 above. Tenant’s
payment to Landlord of the amount due shall be a condition precedent
to
Landlord’s obligation to cause to be performed any work in connection with
or relating to the Additional Project Costs. Landlord shall
notify Tenant of the amount of the Additional Project Costs which
exceed
the aggregate amount of Allowances. To the extent all of the
Additional Project Costs are not known as of the Commencement Date,
or
there are Additional Project Costs that are to be determined or calculated
by Landlord, Landlord shall notify Tenant of any such Additional
Project
Costs within ninety (90) days after final completion of the Improvements.
Landlord’s notice may include any Additional Project Costs not previously
identified by Landlord (whether or not Landlord paid for the work
or
expense relating to such Additional Project Costs). All amounts
for Additional Project Costs to be paid by Tenant shall be paid in
cash or
immediately available funds unless payment is accomplished by charging
against the TI Allowance pursuant to Section 1.6 and 2.4
above.
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6.
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DELIVERY
OF POSSESSION; PUNCH LIST; ACCEPTANCE
AGREEMENT. As soon as the Improvements are
Substantially Completed, Landlord and Tenant shall together walk
through
the Premises and inspect all Improvements so completed, using reasonable
efforts to discover all uncompleted or defective construction in
the
Improvements. After such inspection has been completed, each
party shall sign an acceptance agreement in the form attached hereto
as
Exhibit B-3 (the “Acceptance
Agreement”), which shall include by attachment a list of all
“punch list” items which the parties agree are to be corrected by
Landlord. As soon as such inspection has been completed and the
Acceptance Agreement executed, Landlord shall deliver possession
of the
Premises to Tenant. Landlord shall use reasonable best efforts
to cause General Contractor to complete and/or repair such “punch list”
items within 30 days after executing the Acceptance
Agreement. Landlord shall have no obligation to deliver
possession of the Premises to Tenant until such procedures regarding
the
preparation of a punch list and the execution of the Acceptance Agreement
have been completed. Without limitation on Landlord’s warranty
obligations pursuant to Section 7 hereof, Tenant’s taking
possession of any part of the Premises shall be deemed to be an acceptance
by Tenant of the Improvements in such part as is complete and in
accordance with the terms of the Lease, except for the punch list
items
noted in the Acceptance Agreement; provided, however, that early
entry by
Tenant as permitted in Section 8 below shall not be
deemed to be taking of possession for purposes of this
Section.
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B-7
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7.
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WARRANTY. Landlord
acknowledges that the General Contractor shall provide a warranty
to
Landlord with respect to the Improvements against any defective
workmanship and materials (which shall include any work or materials
not
in accordance with the Final Project Plans as modified by Change
Orders
and any additional specifications or project manual which is part
of such
plans) discovered and brought to Landlord’s attention pursuant to a proper
Tenant’s Defect Notice (as hereinafter defined) delivered during a period
of not less than one (1) year from the date the Improvements are
Substantially Completed (the “Warranty Period”); provided
however that to the extent any warranty period provided in Landlord’s
General Contract with the General Contractor extends for more than
one (1)
year, as to any item or component of Improvements, the Warranty Period
shall be deemed to be such longer period. Landlord shall cause the
General
Contractor to assign to Landlord any assignable warranties provided
to
General Contractor from any third party, and Landlord covenants to
diligently enforce such warranties for Tenant’s benefit. During the
Warranty Period, Landlord shall, at Landlord’s sole cost and expense,
require General Contractor to repair or replace any defective item
occasioned by defective workmanship or materials in and with respect
to
the construction and installation of the Improvements (and specifically
excluding any installations by Tenant or any deficiencies in the
Improvements created by, through or under Tenant or otherwise through
no
fault of or defective performance on the part of Landlord or General
Contractor), provided that (a) Tenant notifies Landlord, in writing
and
with reasonable specificity and detail, of the nature and extent
of any
such alleged defects in the Improvements (“Tenant’s Defect
Notice”) and (b) Tenant delivers the Tenant’s Defect Notice
to Landlord prior to the expiration of the Warranty Period. Landlord
shall
also cause Tenant to be named as a third party beneficiary of any
and all
warranties, including any design warranty ordinarily and customarily
contained in the General Contract provided from General Contractor
to
Landlord under the General Contract. Landlord or General
Contractor shall not be liable to Tenant for damages as a result
of such
defect, resulting from loss of business by Tenant or other consequential
or speculative damages, except to the extent that such consequential
damages or loss profits are covered by insurance carried by Landlord
or
General Contractor as part of such insurance maintained by them in
the
ordinary course of business, it being agreed that neither Landlord
nor
General Contractor shall be required to obtain such coverage to the
extent
not included within the coverage usually and customarily maintained
by
Landlord and General Contractor, respectively. Notwithstanding anything
to
the contrary contained herein, in no event shall Landlord or General
Contractor be liable for, and the warranty specified above shall
not apply
to, defects or alleged deficiencies in any materials or workmanship
in or
concerning the Improvements if and to the extent the defect or deficiency
is due to or caused by any Alterations performed by Tenant, installation
of Tenant Improvements or the abuse, neglect, negligence or willful
or
intentional act or omission of Tenant or its agents, employees,
representatives, contractors, subcontractors, invitees, successors
or
assigns, including, without limitation, Tenant’s failure to maintain a
HVAC Maintenance Contract. From and after the expiration of the
Warranty Period, (x) neither Landlord nor General Contractor shall
have
any liability or obligation, of any nature whatsoever, to remedy,
replace
or correct any alleged defects and deficiencies; and (y) Landlord
shall
reasonably cooperate with Tenant (but at no out-of-pocket expense
to
Landlord) in the enforcement by Tenant, at Tenant’s sole cost and expense,
of any express warranties or guarantees of workmanship or materials
given
by any subcontractors, architects, draftsmen, or materialmen engaged
by
Landlord to supply or complete any of the Improvements, if and to
the
extent that such guarantees or warranties remain in effect after
the
expiration of the Warranty Period. In providing a Tenant Defect Notice,
Tenant shall be obligated to set forth with reasonable specificity
and
detail the nature and extent of such defect. Except as otherwise
expressly
set forth above in this Exhibit B, from and after the earlier of
(1) the
date Tenant takes partial occupancy and (2) the Commencement Date,
Tenant
shall have and hold the Premises in an “AS-IS,” “WHERE-IS” condition,
without any liability or obligation on the part of Landlord for making
any
alterations, improvements, repairs or replacements, of any kind,
in or
about the Premises at any time during the Term of the Lease or any
extension or renewal thereof, and Tenant shall maintain the Premises,
and
all parts thereof, in a good and sufficient state of repair as required
under the Lease. Notwithstanding Tenant’s timely delivery of a
Tenant’s Defect Notice, at no time during the Term of the Lease, shall
Tenant have any right, of any nature whatsoever, to withhold the
timely
payment of any Rent due under the Lease, from time to time, as a
result
of, or due to, or because of, any alleged breaches by Landlord under
the
Lease or the alleged existence of any defects or deficiencies in
the
Improvements. Notwithstanding anything contained herein to the
contrary, none of the following items that may occur in the Improvements
shall be considered defective items occasioned by defective workmanship
or
materials required to be repaired by Landlord or General Contractor
pursuant to this Section 7: (i) any chips,
scratches or marks on such items as tile, woodwork, mirrors, walls,
porcelain, glass (including breakage or cracks) not indicative of
or
resulting from a structural deficiency, plumbing fixtures, lighting
fixtures, or doors not noted in the punch list set forth in the applicable
Acceptance Agreement not indicative of or resulting from a structural
deficiency; (ii) defects resulting from ordinary wear and tear, misuse
or
neglect, or failure to provide proper maintenance not indicative
of or
resulting from a structural deficiency; (iii) cracking or scaling
of the
concrete flat work (which includes, but is not limited to, sidewalks
and
floors) and minor cracks in foundation walls, if any, not resulting
from
infiltration of free water not indicative of or resulting from a
structural deficiency; (iv) cracks in walks, driveways, parking lots,
floor or fountains due to expanding and contracting of concrete from
change in temperature and compacting of the soil on which the concrete
is
placed not indicative of or resulting from a structural deficiency;
(v)
the color of the concrete; (vi) shrinkage in structural wood members;
and
(vii) drywall cracks, nail pops or seems due to drying out and normal
expansion and contraction of the wood or masonry to which it has
been
secured.
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B-8
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8.
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TENANT’S
ACCESS. In addition to Landlord’s obligations
under Section 3.1, Landlord, in its reasonable
discretion, may permit Tenant and Tenant’s agents or independent
contractors to enter the Premises prior to the Target Substantial
Completion Dates, in order that Tenant may do the Tenant Improvements
which are specified in Exhibit B-2
hereto. Tenant shall give to Landlord not less than
five (5) days’ prior written notice requesting access to the Premises,
which notice shall contain and/or shall be accompanied by: (a)
a description of the work to be performed by those persons and entities
for whom and which such access is being required; (b) the names and
addresses of all contractors for whom and which such early access
is being
requested and the approximate number of individuals, itemized by
trade,
who will be present in the Premises; (c) copies of all contracts
pertaining to the performance of the work for which such early access
is
being requested; (d) copies of all plans and specifications pertaining
to
the work for which such access is being requested; (e) copies of
all
licenses and permits required in connection with the performance
of the
work for which such access is being requested; and (f) certificates
of
insurance naming Landlord as additional insured/loss payee as applicable
in form acceptable to Landlord and instruments of indemnification
against
all claims, costs, expenses, damages and liabilities which may arise
in
connection with such work. All of the foregoing shall be
subject to Landlord’s written approval, which approval may be withheld in
Landlord’s reasonable discretion. If Landlord permits such
prior entry, then such license shall be subject to the condition
that (i)
Tenant and Tenant’s agents, employees, representatives, invitees,
contractors, subcontractors, workmen, mechanics and suppliers shall
use
commercially reasonable efforts to work in harmony and not interfere
with
Landlord and its agents and contractors in doing its work in, to,
or on
the Premises; (ii) Tenant shall maintain, in full force and effect,
the
insurance policy or policies required under the Lease, and shall
use
commercially reasonable efforts to cause the General Contractor to
be
designated as an Additional Insured with respect to the Improvements;
and
(iii) Tenant shall pay for any utilities required solely by Tenant
in
connection with Tenant’s early access to the Premises. If at
any time such entry or occupancy shall cause or threaten to cause
such
disharmony or interference, Landlord, in Landlord’s reasonable discretion,
shall have the right to withdraw and cancel such license upon 24
hours’
prior written notice to Tenant. Tenant agrees that any such
entry into and occupancy of the Premises shall be deemed to be under
all
of the terms, covenants, conditions and provisions of the Lease,
except as
to the covenant to pay Rent. Tenant further agrees that to the
extent permitted by law, Landlord and its principals shall not be
liable
in any way for any injury or death to any person or persons, loss
or
damage to any of Tenant’s work and installations made in the Premises
(including, without limitation, any Tenant Improvements) or loss
or damage
to property placed therein prior to the Target Substantial Completion
Date, the same being at Tenant’s sole risk, unless such occurrence is due
to Landlord’s, General Contractor’s or Agent’s negligence or willful
misconduct. Tenant hereby indemnifies, defends and holds
harmless Landlord from and against all Losses which may be brought
or made
against Landlord or a Landlord Indemnified Party, or which Landlord
or a
Landlord Indemnified Party may pay or incur, by reason of the Tenant’s
early access to the Premises pursuant to this Section 8
or due to Tenant Improvements. Notwithstanding any of the
foregoing to the contrary, it is acknowledged and agreed that Tenant
shall
have the right to enter the Premises on the Target Substantial Completion
Date for commencement of Tenant Improvements as set forth in
Section 3.1 and each day thereafter in
accordance with Section 3.1 to complete the Tenant
Improvements, provided that (i) Tenant and Tenant’s agents, employees,
representatives, invitees, contractors, subcontractors, workmen,
mechanics
and suppliers shall use commercially reasonable efforts to work in
harmony
with Landlord and its agents and contractors in doing its work in,
to, or
on the Premises; and (ii) Tenant shall maintain, in full force and
effect,
the insurance policy or policies required under the Lease, and shall
use
commercially reasonable efforts to cause the General Contractor to
be
designated as an Additional
Insured.
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B-9
|
9.
|
AUTHORIZED
REPRESENTATIVES. Tenant hereby appoints ▇▇▇▇▇▇
▇▇▇▇ as its duly authorized representative to review and approve
the
Working Drawings and the Final Project Plans, so as not to unreasonably
delay completion of the Improvements. Tenant hereby represents
and warrants to Landlord that said authorized representative has
authority
to approve the Final Project Plans, as well as the authority to approve
modifications to the Working Drawings. When Landlord requests
Tenant to specify details or layouts, Tenant shall promptly do so,
subject
to the provisions of the Final Project Plans, so as not to delay
completion of the Improvements. Landlord acknowledges and
agrees that no less frequently than once a month, Landlord shall
allow the
Tenant’s Representative to meet with (or attend appropriate meetings with)
Landlord and General Contractor or its representative (a) discuss
the
status of the Improvements and work completed to date, and (b) provide
written updates to the Allowances (with such updates to be detailed
by
line-item category and include estimates of remaining costs), and
the
construction schedule.
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10.
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NOTICES
DURING CONSTRUCTION. Notwithstanding any notice
provision in the Lease, any notice required to be given by either
party
pursuant to this Exhibit B, shall be in writing and,
shall be deemed to have been properly given, rendered or made only
if
personally delivered, or if sent by Federal Express or other comparable
commercial overnight delivery service, or sent by confirmed facsimile,
addressed to the other party at the addresses set forth below (or
to such
other addresses as Landlord or Tenant may designate to each other
from
time to time by written notice), and shall be deemed to have been
given,
rendered or made on the day so delivered or on the first business
day
after having been deposited with the courier
service:
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If
to
Landlord: First
Industrial Investment, Inc.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn.: Executive
Vice
President - Development
At
all
times with a copy
to: First
Industrial Investment, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇
▇▇▇▇▇▇▇
If
to
Tenant: CHD
Meridian Healthcare, LLC
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇, Director of
Procurement
At
all
times with a copy
to: CHD
Meridian Healthcare, LLC
▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attn:
General Counsel
B-10